
("lass __E4-2_ 
Book^C 54 



THE 



LIFE 



OF 



HON. NATHANIEL CHIPMAN, LL.D. 



FORMERLY 



MEMBER OF THE UNITED STATES SENATE, AND CHIEF 
JUSTICE OF THE STATE OF VERMONT. 



WITH 

SELECTIONS 

FROM HIS MISCELLANEOUS PAPERS 



BY HIS BROTHER, 



DANIEL CHIPMAN 

w 



I •» » 



BOSTON : 
CHARLES C. LITTLE AND JAMES BROWN, 

1846. 



Entered according to Act of Congress, in the year 1845, 

By Daniel Chipman, 

in the Clerk's Office of the District Court of the District of Massachusetts. 



B s> 1 on: 

PIMNTED BY FREKMAN AND nOI.LFS, 
WA^iHINGTON STU RET. 



PREFACE. 



Although it might be supposed that the death of 
my brother, at his advanced age, would not surprise 
or deeply affect any one, yet, as we had been the 
only survivors of a numerous family, and as he had 
now left me the only survivor, the intelligence of 
his death produced a shock, which I had not antici- 
pated. I felt a depressing, lonely feeling, which I 
will not undertake to describe ; and I at once re- 
sorted to the numerous letters which had passed 
between us, and spent the day in reading them. 
From this I found relief: It seemed like a renewal 
of our long, intimate fraternal intercourse. This 
susiffested the idea of writing his biography, before it 
was suggested by others. As I anticipated, I have 
derived great satisfaction from a review of his life 



IV PREFACE. 



and character ; alloyed, however, by a fear, that, by 
the infirmities of age, I should not be able to do 
justice to the subject, if permitted to bring it to a 
conclusion in any form. But I have great reason to 
be thankful that a kind Providence has enabled me 
to bring the work to a close, though not in a manner 
satisfactory to myself. A considerable portion of 
the time since the decease of my brother, I have 
been wholly unable to write, and at all times writing 
with difficulty. I have permitted a great portion of 
the work to be copied from the first draught. But 
if the work, with all its defects, shall prove useful ; 
if I have portrayed the character of Nathaniel 
Chipman with exact truth ; if I have succeeded in 
accounting for the acuteness, strength and compre- 
hension of his mind, and for that fund of general 
knowledge which he had acquired, by truly setting 
forth his early training, his early voluntary attention, 
his conscientious regard for truth, and his systematic 
diligence, — I have accomplished all I wished. I 
have set forth an example, to be followed by parents 
in training their children, by young men in the course 
of their education, and by all in public life. To 
write a panegyric would, in this case, savor of van- 



PREFACE. V 

ity, and is in no case very useful, without setting 
forth the early training and the early acquired habits 
which contributed to form the character of the per- 
son eulogized, as an example to be followed by the 
rising generation. Such is, undoubtedly, the legiti- 
mate purpose of biography. To eulogize a great 
and a good man may indeed be useful, by exciting 
an ambition to follow his example, but it does not 
instruct the young by what means they may be ena- 
bled to do so. Biographers are generally compelled, 
from a want of a knowledge of facts, to content 
themselves with portraying the character as it ap- 
peared on the theatre of life, without setting forth 
the causes which operated in forming it. Fortu- 
nately, in this case, I have been able to obtain the 
necessary facts, or rather to detail them from my 
own knowledge. All this I could do without any 
embarrassment. But from my near connection with 
Judge Chipman, and from the very high estimation 
in which I had ever held him as a judge, I felt a 
delicacy in portraying his judicial character, fearing 
that I might either go beyond or fall short of exact 
truth. So sensibly did I feel this embarrassment, 
that I concluded to engage some jurist, more compe- 



VI PREFACE. 

tent and more impartial, to write hi^ judicial charac- 
ter. Having formed this conclusion, for obvious 
reasons, my attention was immediately turned to the 
Hon. Samuel Prentiss ; and I took leave to write 
him on the subject. In answer, I received the fol- 
lowing letter : 

« 

MoNTPELiER, Dec. 14thj 1843. 
Dear Sir : I have reflected upon the subject of 
your letter, and am quite free to say that in my 
opinion, no one is so competent to write the judicial 
character of your brother, as ^^ourself. You have 
advantages in the execution of such an undertaking 
which no other one possesses. You were a cotempo- 
rary with him, practised at the bar under his admin- 
istration, and know, of course, all the various traits 
of mind and constitutional temperament, which, 
combined with his deep and extensive learning, en- 
titled him to rank among the first judges of this, or 
any other country. From your personal observation 
and intimate knowledge of him both in public and 
private, you are enabled to state the prominent fea- 
tures of his mind and character as a judge, and to 
illustrate his peculiar excellencies in that capacity, 



PREFACE. VU 

with more truth, discrimination and accuracy, than 
it is in the power of any one else at this day to do. 
I knew his general reputation as a judge, and wit- 
nessed, during the short period he was last on the 
bench, exhibitions of the great strength, vigor, com- 
prehension and clearness of his mind, of his pro- 
found and accurate knowledge of legal principles, 
and of his remarkably discriminating and well-bal- 
anced judgment ; but my practice in the supreme 
court was at that time but just commencing, and my 
opportunities of personal observation were too few 
and limited to enable me to give, with just precision 
and distinctness, neither going beyond nor falling 
short of exact truth, the distinguishing traits of his 
judicial character. All this, as I have said, you have 
the means of doing, and I think you should feel no 
delicacy in performing it, but express your views 
with perfect freedom, and without reserve. The 
life of Lord Keeper Guilford, one of the most inter- 
esting biographies extant, was written by his brother ; 
the life of Lord Hardwick, if I recollect right, was 
the production of his son ; and so was the life of 
Lord Teignmouth the work of his son. To these 
might be added many other instances of the like 



Vlll PREFACE. 

kind, both in English and American literature ; so, 
you see, you are not without the support of numer- 
ous and very illustrious examples. 

I am, with high respect. 

Your obedient, &.c. 

Samuel Prentiss. 
Hon. Daniel Chipman. 

On the receipt of the foregoing letter, I proceeded 
with the work, following the friendly advice of Judge 
Prentiss in expressing my views, as the reader will 
perceive, with perfect freedom, and without any re- 
serve ; and, I hope, without going beyond or falling 
short of exact truth. 

Bipton, August 13, 1844. 



CONTENTS. 



CHAPTER I. 

Page. 
Genealogy of the Family — The staid Habits of the Puritans con- 
tinued'during his Childhood and Youth — Diligent and systematic 
Pursuit of his collegiate Studies — Appointed Lieutenant in the 
revolutionary Army — Some of his juvenile poetic Productions — 
Letters to some of his Classmates, written while in the Army, 
and when pursuing his legal Studies — Admitted to the Bar in 
Connecticut and commenced Practice in Vermont — His standing 
at the Bar. ...••••*' 



CHAPTER H. 

Secret Negotiations with the British Authorities in Canada — Ex- 
tract from the " Life of Brant," containing a Charge of Criminal- 
ity a^rainst the Leading Men in Vermont — Vindication of those 
Patriots against the Charge. . . • • . o / 



CHAPTER HL 

Occasion and beneficial Operation of the Quieting Act — Mr. Chip- 
man unsuccessful in his Farming and other Business — Resolu- 
tion of the Legislature, by which certain Measures proposed for 
the Relief of the People calculated only to increase and prolong 
their Sufferings, were postponed and defeated — Elected Assistant 
Judge of the Supreme Court. . . • • 6* 

b 



Xii CONTENTS. 

Page. 

NO. VIII. 

Letter from Nathaniel Chipmau to Alexander Hamilton, occasioned 
by certain Proceedings of the Democratic Society of the County 
of Chittenden ...•••• 393 



LIFE OF NATHANIEL CHIPMAN. 



CHAPTER I. 

Genealogy of the Family — The staid Habits of the Puritans continued 
during his Childhood and Youth — Diligent and systematic Pursuit of 
his collegiate Studies — Appointed Lieutenant in the revolutionary 
Army — Some of his juvenile poetic Productions — Letters to some of 
his Classmates, written while in the Army, and when pursuing his 
legal Studies — Admitted to the Bar in Connecticut and commenced 
Practice in Vermont — His standing at the Bar. 

The common ancestor of all those bearing the 
name of Chipman, in North America, was John 
Chipman, born in Barnstable, in England, in the 
year 1614. He emigrated to America in the year 
1630, at the age of sixteen, and married a daughter 
of John Rowland, one of the pilgrims, who in 1620 
landed from the Mayflower upon the Plymouth rock. 
He settled on a farm in Barnstable, on which his de- 
scendants have ever since resided. He was admitted 
a freeman by vote of the town in December, 1662. 
His second son, Samuel Chipman, was born in Barn- 
stable, August 15th, 1661. He married Sarah Cobb, 
and had ten children, one of which was John Chip- 
man, born in Barnstable in 1691, graduated at Har- 
1 



6 LIFE OF NATHANIEL CHIPMAN. 

vard College in 1711, ordained minister in Beverly, 
Massachusetts, in 1715, and died in 1775, aged 84. 
He had fifteen children ; their descendants are very 
numerous in Nova Scotia and New Brunswick, 
among whom is Ward Chipman, one of the com- 
missioners under the treaty of Ghent for setthng the 
North-eastern boundary. 

The eldest of the ten children of Samuel Chip- 
man was Thomas, born in Barnstable, November 
17th, 1687. He settled in Groton, Connecticut, and 
had five sons, Thomas, John, Amos, Samuel and 
Jonathan. In the year 1740, he removed with his 
five sons to Sahsbury, Connecticut. In the year 
1741, the town of Salisbury was organized, and he 
was the first representative. When the county of 
Litchfield was organized, he was appointed a judge 
of the county court, but died before the first term. 
His son Samuel, father of the subject of this memoir, 
married Hannah Austin, of Suffield, Connecticut. 
The family records having been lost, the following is 
all that is known of her family. Her father was a 
physician ; himself and the father of the late Apollos 
Austin, of Orwell, Vermont, were cousins. The late 
Seth Austin, of Tunbridge, Vermont, the late Aaron 
Austin, of New Hartford, Connecticut, the late Dan- 
iel Austin, merchant in New York, and the late Eli- 
phalet Austin, of the state of Ohio, were her nephews. 
And I learned from the late Benjamin Austin, of 
Boston, that himself and the Austins in Sufiield, were 
of the same stock. Samuel and Hannah Chipman 
had six sons, Nathaniel, the subject of this memoir, 
who was born the 15th of November, 1752, Lemuel, 




LIFE OF NATHANIEL CHIPMAN. 7 

Darius, Cyrus, Samuel and Daniel. The five eldest 
brothers died at the following ages, to wit : Nathan- 
iel, 90 ; Lemuel, 76 ; Darius, 76 ; Cyrus, 77, and 
Samuel, 76. Their father, Samuel Chipman, and his 
two brothers, Thomas and Jonathan, all died in the 
ninety-first year of their age. 

To delineate the character of Nathaniel Chipman, 
and clearly to account for the early discipline, acute- 
ness, strength and comprehension of his mind, for 
which in after life he was so distinguished, it seems 
necessary to advert to the times in which he spent 
his childhood and youth. 

The staid habits of the puritans were continued 
with little adulteration to the commencement of the 
revolutionary war. Everything with them was or- 
derly and systematic. In comparison with the reli- 
gious character of their descendants, their religion 
was more intellectual. Great stress was laid on or- 
thodoxy — on a clear understanding and steadfast 
faith in the great doctrines of the Gospel, and less on 
the vividness of their religious affections. As their 
religious affections were less vivid, they were more 
uniform, more habitual, and thus became actuating 
motives, and settled religious principles by which they 
were governed in all the concerns of life. Public 
worship was punctually attended on the Sabbath, but 
with them this was scarcely more of a religious exer- 
cise than the government of their families, the educa- 
tion of their children, industry in their several call- 
ings, honesty in their dealings, submission to the civil 
and ecclesiastical authorities, and the performance of 
all their moral duties.J True, other sects consider all 



8 LIFE OF NATHANIEL CHIPMAN. 

these as enjoined by the scriptures, but the puritans 
had in their exercise a more constant reference to the 
scriptures for direction. Most treatises on reHgious 
subjects were argumentative, requiring an exercise of 
the intellectual faculties, and were in the hands of 
the mass of the people. Hence a habit of voluntary 
attention, so indispensable in the education of youth, 
was early acquired, with a taste for sohd and useful 
reading on other subjects. It has been said, that 
" the effects upon the intellect of the well-directed 
pursuit of religious knowledge are not inferior to 
those of literary and scientific pursuits, in cultivating 
those mental habits and powers, which are of the 
greatest importance in the conduct of life, and that 
the laborious class of the Scotch, aflbrd a striking 
illustration of this truth. Their acuteness and pene- 
tration of thought, solidity of judgment, and habits of 
reflection for which they have been justly so much 
noted, have been brought into exercise by their reli- 
gious culture." The puritans offered as striking an 
illustration of this truth. 

The family government of the puritans was also 
peculiarly adapted to the cultivation of the intellect- 
ual faculties, as well as to laying a foundation for 
moral and religious principles. The child was gov- 
erned as well by fear as by aflection. If a child be 
allured to the acquisition of knowledge, it will have a 
tendency to form an amiable character. But unless 
he be governed in part by fear of his parent, and act 
in obedience to his authority, there will seldom be 
that hardy vigor of intellect, which is so useful in 
every department of life ; and if, by a too severe and 



LIFE OF NATHANIEL CHIPMAN. » 

austere government, a child was sometimes ruined 
by creating in him an utter impatience of all re- 
straint, and producing a settled opposition to all 
sound principles, and all legitimate authority, yet in 
most cases the strictness of family government had a 
most salutary effect. It created in the child an habit- 
ual submission to the will of his earthly parent — an 
important if not an indispensable preparation for an 
habitual obedience to the will of our heavenly Pa- 
rent. Children, too, were brought up in habits of 
unremitted and patient industry. And when they 
were called from labor, to study, to obtain an educa- 
tion, this habit of industry greatly accelerated their 
progress. 

The father of the subject of this memoir carried on 
the business of a blacksmith, and cultivated a small 
farm, by which he maintained a numerous family. 
Some of the sons labored with him in the shop, the 
others on the farm. He was himself a most indus- 
trious man, and was very particular in having his 
sons in constant employment, and all the concerns 
of the family were subjected to an orderly system, no 
departure from which was ever permitted. 

At an early hour the whole family retired to rest, 
and all, from the oldest to the youngest, were com- 
pelled to rise at an early hour, by means of which 
they acquired a confirmed habit of early rising, for 
which they were noted through life. The father and 
mother were equally industrious, and yet both had a 
taste for reading, and both read more than most 
laboring people. Still, it seemed never to interfere 
with their business. During the winter evcninffs, 



10 LIFE OF NATHANIEL CHIPMAN. 

some one in the family read, and what was read was 
made the subject of conversation. And it is worthy 
of notice that a well-selected town library had been 
procured, and that from this library the family were 
supplied with books. 

The subject of this memoir labored on the farm 
until the year 1772, when he entered upon his pre- 
paratory studies for entering college, as was custom- 
ary in those days, with the minister of the parish. 
And as he entered upon his studies with a sound 
body and with a sound mind, both alike invigorated 
by exercise, and with a settled habit of industry, he 
/ made rapid progress in his studies, and entered Yale 
^' College in the year 1773, at the age of 21, having 
C spent but nine months in his preparatory studies. 
For a short time after he entered college he spent 
most of his time upon his recitations ; but he was 
soon able to make such progress in his classical stu- 
dies, that he was obliged to spend but a short time in 
reviewing his lessons before recitation. This enabled 
him to go forward of his recitations still more rapidly. 
He followed this course until he left college. He 
pursued his studies systematically, devoting a certain 
allotted portion of his time to the languages, another 
portion of his time to his other classical studies, an- 
other to general reading ; every day devoting some 
time to light reading for relaxation. This course he 
strongly recommended to those who were about to 
enter college, saying, " if you calculate to become 
a scholar of any distinction, solely by studying your 
lessons, so as to appear well at your recitations, you 
will be sadly disappointed. Or if you pursue your 



LIFE OF NATHANIEL CHIPMAN. 11 

Studies without system, reading this or that, as you 
may be prompted by the feelings of the moment, you 
will only dissipate the mind. You will never either 
discipline the mind, or lay up in order any store of 
useful knowledge. If you calculate only from day to 
day to get your recitations, you will sit down to them 
as a task, and will not acquire a taste for your studies, 
or take any pleasure in pursuing them ; and if you do 
not, it will be better to quit your studies, no matter 
how soon. Whereas if you pursue your studies sys- 
tematically and with diligence, not confining your- 
self to your recitations, but keeping in advance of 
them, in all your classical studies, and spending but a 
short time in reviewing them, you will be far more 
likely to acquire a taste for your studies and pursue 
them, not as a dreaded task, but as a most pleasant 
employment." 

He immediately took a high standing in his class, 
which he maintained through his collegiate course. 
Although he had a peculiar taste for the languages, 
yet he had the reputation of a universal scholar. 
He was advised to prepare and present himself as a 
candidate for the premium provided to be awarded 
to the best linguist in the class ; but he declined it, on 
the ground, that his inclination led him to spend as 
much time in the study of the languages as he ought 
to do, without this stimulus. This was true ; for 
during his collegiate course he made himself perfect 
master of the Hebrew, Greek, and Latin. And after 
he left college and entered upon his profession, he 
continued through life to read the Old Testament in 
Hebrew, and the New Testament in Greek, with 



12 LIFE OF NATHANIEL CHIPMAN. 

Homer, Virgil, and the minor Greek and Latin poets, 
calculating to go through the course once in a year. 

It appears, on examination of his papers, that during 
his collegiate life, and for a short period after, he 
exhibited a taste for poetry, but soon after he entered 
on his profession he desisted from writing poetry 
altogether. It is evident, therefore, that if he ever 
entertained an idea of appearing before the world as 
a poet, he very early abandoned it. I should not 
therefore, feel justified in publishing any of his juvenile 
productions, were I not persuaded that the man will, 
by their publication be more intimately known to the 
reader. It will I think appear highly probable that 
if he had not derived a higher degree of pleasure 
from the exercise of his reasoning faculties, he would 
have been attracted by the pleasures of the imagina- 
tion to the cultivation of his poetic talents. 

The following was written in May, 1775, soon after 
the Lexington battle, and is all that remains of the 
manuscript, the forepart of which has been torn oflf, 
and cannot be found. The piece was published in 
the New Haven Postboy, and as it related to British 
oppression and the doubtful contest for liberty then 
just commenced, it attracted considerable notice at 
the time. 

Here, when a tyrant Britain's sceptre swayed, 
And persecuting zeal the land o'erspread. 
Led by the hand of Heaven across the flood. 
The sons of Liberty fixed their abode. 
Here desert wilds and trackless wastes they found. 
Here savages by thousands girt them round, 
With painted arms they poured their legions forth. 
In swarthy myriads from the pop'lous north. 



LIFE OF NATHANIEL CHIPMAN. 13 

To extirpate tliose mighty sons of fame, 
And from the earth to raze their envied name. 
In vain they swarmed — aimed their fleet shafts in vain, 
Overcome they fell upon the ensanguined plain. 
Now the untrod desert, cultivated, smiled ; 
And towns were settled through the pathless wild ; 
Young states were founded here and lived at ease, 
Enjoyed their freedom and their rights in peace ; 
Till France invaded — then the British arms 
Her boasted empire shook with dread alarms. 
With laurels were the British armies crowned, 
And Canada the British sceptre owned. 
Now tyranny again has filled the throne, 
And from the British senate virtue flown. 
False to their oaths, and to their solemn trust, 
They tread the rights of nations in the dust. 
America, where freedom held her reiorn. 
Now first is doomed to wear the sailing chain. 
Oppressed, she groans beneath their lawless power, 
And quakes to hear the gathering tempest roar. 
Rise ! sons of freedom ! close the glorious fight, 
Stand for religion, for your country's right. 
Resist the tyrant, disappoint his hopes. 
Fear not his navies, or his veteran troops. 
Think on those heroes who resigned their breath 
To tools of tyrants, ministers of death, 
Who firm, the rage of tyranny withstood. 
And seal'd the cause of liberty with blood. 
Let their example patriot zeal inspire, 
And every breast with martial ardor fire. 
Oh Heaven ! be gracious ; save our sinking land, 
Crush our proud foes with thine avenging hand. 
Kindle thy thunders, bid thy lightnings fly, 
Let tempests heave the ocean to the sky. 
Plunge in the billowy deeps their naval power, 
Or cast them shipwreck'd on some unknown shore. 
/^Lct white-robed peace once more extend her reign. 
And justice hold the impartial sword again. 
2 



14 LIFE OF NATHANIEL CHIPMAN. 

Under their influence let an empire rise, 
And far extend beneath the western skies. 
From sea to sea — from Darien to pole, 
Till time shall end, till years shall cease to roll. 

The following was written to Mr. Cogswell, a 
classmate, in April, 1777, after he had received a 
Heutenant's commission in the army. 

/ No more, my friend, I '11 rack my brains, 
To write in high heroic strains. 
But since I see 't is what you choose, 
I '11 court the Hudibrastic muse. 
And think you then the softer passion 
Of love, with me is out of fashion ? 
Or think my heart so hard has grown, 
No charm can ever melt it down. ^ 
You 'd make your friend a very stoic 
For only jesting in heroic. 
However, sir, since you 've begun, 
I '11 tell a tale to help it on. 
When every beast could talk and chatter. 
As learned ^Esop tells the matter, 
On high there hung a bunch of grapes, 
For which a fox took many leaps; 
But when he found he could not gain them. 
He thus affected to disdain them : 
Hang them, he says, I '11 leap no more, 
For when they 're gained they 're cruel sour. 
Think you this fox would never leap, 
To catch another tempting grape .'' 
Or can you safely make the assertion, 
That all thenceforth were his aversion? 
Or should I now give o'er the tilt. 
If one or two have play'd the jilt? 
Because a lass has proved unkind, 
Can that forever sour my mind ? 



LIFE OF NATHANIEL CHIPMAN. 15 

You '11 think it strange what I assert, 
But I will venture to aver 't 
I ne'er found Heaven in smiles alone, 
Nor yet damnation in a frown. 
'T is my opinion, sensibility 
Should never banish all tranquillity. 
Avast ! methinks you say, enough 
Of this condemned insipid stuff. 
Let's know how you employ your time. 
Why faith, you see I 'm writing rhyme : 
|But I no more Parnassus tread, 
A foolish whim has turned my head. 
The muse has lost her wonted charms. 
And I am rushing on to arms. 
No more I sing of bloody fight. 
But now prepare myself to try't. 
And leave to you the extensive rule 
You 've late acquir'd in country school ; 
Your whip, your ferrule and your pen, 
And cringing band of pigmy men. 
Yes, you may laugh to see me cased 
In armor, with a cockade graced ; 
Nor will you laugh alone, I warrant. 
At such a doughty huge knight-errant. 

The following were written in camp at Valley- 
forge, in February, 1778, to Mr. Fitch, a classmate, 
afterwards president of Williams College. 

From where the Schuylkill rolls its waves. 
And Pennsylvania's meadows laves, 
To Fitch, mine and the muses friend. 
These Iludibrastic lines I send. 
While you drink deep the Aonian fountain. 
Or range Parnassus' sacred mountain. 
Beneath those blooming shades recline, 
Surrounded by the immortal Nine ! 



16 LIFE OF NATHANIEL CHIPMAN. 

Now tune your' harp to pastoral strains. 

To love, to joys, and tender pains ; 

And while the plaintive numbers flow, 

With raptures feel your bosom glow, 

Or now unlock the learned store, 

By sages treasured up of yore, 

Weep o'er the fallen hero's hearse, 

Trace mighty empires from their source. 

See how they rose by freedom's force, 

See how disinterest made them great. 

Or fell corruption sapped the state ; 

With god-like Plato moralize. 

Or soar with Homer to the skies ; 

Or now more modern works you read 

As judgment, or as fancy lead. 

And when the over-studied mind 

To recreation is inclined. 

In circle with the softer sex 

Gayly in conversation mix. 

Now woo the mistress of your heart. 

Who feels herself the pleasing smart. 

And glows alike with chaste desires, 

Unmix'd with mere licentious fires, 

A passion to the mob unknown 

And felt by generous souls alone. 

While you these rapturous scenes pursue, 

Where pleasure rises ever new; 

By cruel fate condemned to roam 

Far from my friends and native home. 

Where ruthless war in triumph reigns, 

And desolation sweeps the plains. 

Here must we feel the inclement air. 

Bear all the unequalled toils of war ; 

Meet hardship in a thousand forms. 

Now scorch'd with heat, now drench'd with storms. 

With cold and want maintain the strife, 

Such are the ills of martial life. 



LIFE OF NATHANIEL CHIPMAN. 17 

Anon the cannons''war alarms, 

And leaders cry aloud, to arms ! 

Now polished arms in dread array 

Beaming, restore the blaze of day, — 

The streaming standards blaze on high. 

And front to front the hosts draw nigh ; 

And now they close with direful shock, 

The fields involved in flames and smoke, 

Disploded with tremendous roar 

That echoes to the distant shore. 

While leaden deaths thick fly around, 

And slaughtered heroes strew the ground. 

Terror in every form appears. 

Now shouts, now groans assail the ears. 

The earth is drenched in streaming blood 

That purples every neighboring flood ; 

Till one deep pierced in disarray. 

Is forced to yield the fatal day. 

And now, my friend, come view the plain, 

Deformed with mangled heaps of slain ; 

See here by deadly wounds subdued. 

Thousands still weltering in their blood. 

Their country's glory was their all. 

For her they fought, for her they fall. 

Oh grant, kind Heaven, these scenes may end. 

And peace her olive-branch extend ; 

In freedom this fair land be blest. 

Nor Britain more our right contest. 

Among the papers of the deceased I find transla- 
tions of several odes of Horace, and of part of his 
satires — made during his collegiate life. The fol- 
lowing is a short poem from Anacreon, paraphrased. 

Unhappy he whose callous heart 

Ne'er felt the joys of love, 
Whose bosom, steeled to soft desires, 

Not Venus' self can move. 



18 LIFE OF NATHANIEL CHIPMAN. 

Unhappy he who yields his heart 
A pray to Love's enchanting snare, 

Whose hopes of bliss alone depend 
On some inconstant fair. 

But more unhappy he who loves, 

Yet meets no kind return, 
Whose sighs, whose tears, and tender vows 

Are all repaid with scorn. 

Soon after the close of the revolutionary war, the 
people, from habits of idleness and dissipation, con- 
tracted during its seven years continuance, found 
themselves impoverished, and wholly unable to pay 
their debts. And as it ever is with individuals so it is 
with communities ; if they find themselves in a poor, 
distressed condition, they never once think of ascrib- 
ing it to the true cause, their own misconduct, but inva- 
riably charge it to misfortune, or what is more natural 
and more common, to the wrong-doing of others. The 
distress of the people was not at that time laid to the 
oppressive aristocracy of wealthy individuals, they 
were too few in number to attract attention. But as 
the people felt the pressure of their debts through the 
courts, the lawyers, and the sheriffs, the cry was, 
" stop the courts," expel the lawyers, and resist the 
sheriffs ; and the people began to hold conventions to 
increase the excitement and to organize an opposi- 
tion to the government. For this purpose a conven- 
tion was holden at Wells, or rather in the " edge of 
Wells," for at that day, (how it is now I know not) 
all the inhabitants of Wells invariably gave as the 
place of their residence " The edge of Wells." 

The convention published a journal of their pro- 



LIFE OF NATHANIEL CHIPMAN. 19 

ceedings, and the subject of this memoir, wrote and 
published the following as a burlesque on these pro- 
ceedings. It was considered at the time, that it had 
a very salutary effect. Many individuals who had 
before favored the malecontents, were afterwards un- 
willing to be seen with them. 

JOURNAL OF THE WELLS CONVENTION, 1786. 

Whereas the assembly of this state 

Have dared audaciously of late 

With purpose vile the constitution 

To break, or make a wicked use on; 

By making laws and raising taxes, 

And viler still, (so truth of fact is) 

By keeping up that smooth-tongued clan, 

For ages cursed by God and man, 

Attorneys, whose eternal gabble. 

Confounds the inexperienced rabble ; 

Who quote down precedents and cases, 

Of ancient date, in ancient phrases ; 

Hard lessons taught by deep-read sages 

Whom mankind have revered for ages, 

Of law the guardian and trustees. 

And oracles in courts of justice ; 

Forbid the courts to arbitrate. 

And deal the jury proof by weight ; 

Would have all actions tried by rules, 

A tenet fit for slaves and fools ; 

And what is worst in land of freedom, 

The judge and jury often heed 'em, 

And Tom and John must lose their cause. 

And why ? Forsooth, they 've broke the laws. 

'T is liberty we have in view, 

'T is liberty we all pursue. 

To think, to speak, to act and do, 

And none to say why do ye so ? 



20 LIFE OF NATHANIEL CHIPMAN. 

Sorely aggrieved at such sad doing, 

Wliich tends to work our utter ruin, 

In edge of Wells, in log house met. 

To rectify affairs of state, 

We first appoint a moderator, 

To stop or license every prater ; 

And then to keep our votes in order, 

With caution great appoint recorder, 

John, who alone in time of need. 

Of all convened could write or read. 

Then after many a sage debate, 

And argument of mighty weight. 

Now heard from some what others said 

Who 'd heard the constitution read. 

Though some to this put in demurrer. 

Averred we all were in an error. 

And swore they knew the constitution 

Was but an heathenish delusion. 

An image formed with many a head. 

Like what they 'd heard in Bible read, 

To which the assemblymen all swore 

To love it, cherish and adore. 

But all to this would not give credit. 

Although they roundly swore and said it ; 

As one agreed that we '11 petition 

The assembly hence at every session. 

So long as we shall think it best, 

To get our grievances redrest ; 

Inform them that their laws of course 

Before they gain a binding force. 

Must all be sent to this convention. 

Or others, formed with like intention, 

For their consent and approbation — 

Such right we have in legislation. 

For those whom we have thought most fitting 

To vote for at each freeman's meeting, 

Through lack of votes we never chose. 

Or could not go through lack of clothes — 



LIFE OF NATHANIEL CHIPMAN. 21 

The laws by us were never made, 
What reason then they be obeyed ? 
And don't these things in fact abridge us 
Of all our rights and privileges? 
Beside, let fees be lessened down, 
And judges sit for half a crown. 
A half a crown has been the wages 
Of common lab'ring men for ages ; 
And how can these who sit at ease 
With nought to do, earn greater fees? 
But lest the world should think us partial, 
And this is but a mobbish farce all. 
Let them of us the judges make — 
We 're ready or to give or take. 
Nor do we lack men of discerning. 
Of parts robust — a fig for learning. 
Nor do we lack for judgelike gear, 
We 've rusty wigs bobb'd to the ear. 
And leathern doublets neatly made. 
And aprons matched, in sign of trade ; 
Striped linsey-woolsey vest and hose. 
Which comely leather buttons close. 
Huge bludgeons made of trusty oak, 
Will settle wranglers every stroke, 
And fit the hand of justice well 
As sword of truest tempered steel. 
Then lawyers from the courts expel. 
Cancel our debts, and all is well. 
But should they finally neglect 
To take the measures we direct. 
Still fond of their own power and wisdom. 
We '11 find effectual means to twist them. 
And now to prove we mean no evil, 
To all the world we will be civil. 
Firmly resolved to murder no man, 
Plunder, nor rob, nor ravish woman. 
Not but if hunger press us hard, 
We'll take a hen from neighbor's yard, 
3 



LIFE OF NATHANIEL CHIPMAN. 

Or now and then a lusty sheep, 
Or leg of pork while the owners sleep, 
' To this we have prescriptive right, 

If done with caution, while 'tis night. 
Nor can we less, ere we conclude. 
Than give as due in gratitude, 
Our thanks to Amos what's his name? 
Whose piece eclipses Bunyan's fame, 
Well vindicates what we 've agreed to, 
And stops attorneys just as we do. 
Proves but for them we might refuse 
To pay our long-forgotten dues. 
To creditors might bid defiance. 
And look at sheriffs, bold as lions. 

The following, on the death of a child, occasioned 
by a scald, was written in the year 1788. And it 
is very certain that he never wrote a line of poetry 
afterwards. 

Why, dear Amanda, why that mournful look. 
Why ceaseless flows the tear, why heaves the breast? 
Because thy babe, sweet innocent, is gone 
To dwell embosomed in eternal rest. 

Hard, hard the lot to see the lovely form 
Just blooming into life, with cruel smart 
And pangs convulsive yield a prey to death. 
How agonizing to a parent's heart ! 

Flow then the tear and heave the aching breast 
Paternal tenderness and nature bid ; 
Yet not too long indulge the pleasing woe, 
Nor wrong the living while you mourn the dead. 

Ah ! can a mother soon to oblivion yield 
Those little actions, pledge of future joy. 
The endearing smile, the more than fond embrace, 
And in distress the mute imploring eye. 



LIPE OF NATHANIEL CHIPMAN. 2^ 

Descend, sweet cherub, from the blest abode, 
Oft deisn to visit those thou 'st left beliind. 
In slumbers gently soothe a parent's cares. 
And whisper comfort to the anxious mind. 

To souls enlarged, though in a realm of bliss, 
Such office sure must yield a sweet employ ; 
To soothe parental grief, to calm distress, 
Must give a zest e'en to celestial joy. 

The reader will notice that the subject of this 
memoir left college in the spring of the year 1777 ; 
and in bringing together such of his poetical produc- 
tions as it seemed proper to publish, I have gone 
forward to the year 1788. We will now revert to 
the spring of the year 1777, which was his senior 
year, when he obtained a lieutenant's commission, 
and immediately joined the army. At the ensuing 
commencement his degree was conferred in his ab- 
sence. While in the army he maintained a high 
standing for an officer of his rank, but I have been 
able to learn nothing very particular in relation to 
him while there, except what appears from the fore- 
going poetic epistle to Mr. Fitch, and from the fol- 
lowing letters written by him to some of his class- 
mates, of which he preserved copies. 

The following letter to Elisha Lee is dated Valley- 
Forge, April 10, 1778. 

Dear Sir, — I have received letters from many of 
my old friends, but from you. Fitch and Coggswell, 
whom I esteemed my most intimate friends, not a 
line. Letter after letter have I sent to no purpose — 
they may have indeed miscarried, though the oppor- 
tunities were very direct. I am informed by letter 



24 LIFE OF NATHANIEL CHIPMAN. 

from A , that you are still teaching a school at 

Middletown. 

How are the times in Connecticut ? What the 
run of politics ? What plan of operations have your 
chimney-corner generals struck out for the next cam- 
paign ? They have doubtless something in agitation. 
I saw an item of this in a letter from a gentleman of 
your acquaintance ; I will give it you in his own 
words, as near as I can recollect them. " It is a dis- 
grace to humanity, to Britons and Americans, that 
two such powerful armies, on whom the fate of Eu- 
rope and America depends, should lie inactive. What 
can Howe, what can Washington mean ? What stu- 
pidity! It is not enough that we carried the cam- 
paign through almost half the winter ? No, we must 
still keep the field in defiance of frost and snow, 
or what at that season is still worse, rain and hail, 
though one half the army was disbanded and the 
other half worn out with fatigue. Nothing less will 
suffice than the siege of Philadelphia in the depth of 
winter. How mean, how despicable must such per- 
sons appear to men of the least reflection. Persons 
who never saw an army, or read of a battle, except 
in a newspaper, who, for intelligence, depend on 
common report at three hundred miles distance, and 
yet would persuade the world that they could direct 
the movements of an army better than an experi- 
enced general on the spot, who is minutely informed 
of every circumstance relative to both armies. That 
men, who pretend to be rational, should speak in this 
manner, is indeed ' a disgrace to humanity.' " 

There is another thing that raises my indignation 



LIFE OF NATHANIEL CHIPMAN. 26 

still higher. I learn that it is a common topic of con- 
versation in Connecticut, and, indeed, through New 
England, that General Washington will not fight. 
" Let Gates," say they, " take the command, and we 
shall see an end of the war." General Gates has 
done well, he has done gloriously ; I have as high a 
sense of his merit as any man. But the truth is, Bur- 
goyne failed himself, and Gates conquered him. Be- 
sides, Gates was in a situation to command what 
assistance he pleased, and that the flower of the con- 
tinent. What shall we say of Washington here at 
the head of fifteen, or at most, twenty thousand men, 
for his army never exceeded that number, and one 
third of them Pennsylvania militia, who for the most 
part never dared to face an enemy. I have seen, 
when our regiment was closely engaged, and almost 
surrounded, seven hundred of them quit the field 
without firing a gun. On the seventh of December, 
the army of the enemy, exclusive of those left to gar- 
rison Philadelphia, and the neighboring posts, amount- 
ed to eleven thousand effective men. From this, you 
may judge of their strength at the opening of the 
campaign. There is not another state on the conti- 
nent where so many traitors are to be found, as in 
this, and yet General Washington baffled all the strat- 
agems of a wary, politic and experienced general, 
and has several times fought him not unsuccessfully. 
All General Gates has done does not render it even 
probable, that in General Washington's situation, he 
would not have been totally defeated. The army, to 
a man, except those who conquered under Gates, 
have the highest opinion of General AVashiiiirton. 



26 LIFE OF NATHANIEL CHIPMAN. 

They love, I had almost said, they adore him. While 
he lives, be assured, they will never brook the com- 
mand of another. I cannot but observe here, that 
nothing has been more detrimental to us, than pub- 
licly exaggerating our strength, and diminishing that 
of the enemy ; you will readily perceive the conse- 
quences. When the campaign will open I know not. 
The troops spend their time in discipline, in which 
they make great proficiency. W^e have for our 
inspector-general. Baron Steuben, who has been aid- 
de-camp to the king of Prussia, and lieutenant-gen- 
eral in his service. 

The following letter to Mr. Lee was dated. Camp, 
at Valley-Forge in April, 1778 : 

Dear Sir, — I had just sealed my letter No. 3, 
when yours of the 25th instant came to hand. I 
have prevailed on the post to wait for this. I have 
in a former letter given you a particular account of 
my adventures since I saw you ; but I suppose the 
letter miscarried. I have not now time to enter into 
details. As to the situation of the armies, Howe is in 
Philadelphia, and we are encamped and strongly for- 
tified twenty miles above, on the banks of the Schuyl- 
kill. I can give you no account of their intentions, 
since, whatever may be the reason, I have not of late 
been admitted to the cabinet. The ofiicers of the 
army are at present in a great dilemma, whether in 
contempt of poverty and the unmerited reproaches of 
their ungrateful constituents, they shall still continue 
in the service of their country, or quit, and join with 
the rest of the world in the pursuit of riches. Depend 
upon it, if something is not done, most of them will 



LIFE OF NATHANIEL CHIPMAN. 27 

resign, and that soon. I have no expectation of see- 
ing you in the country till the close of another cam- 
paign. I have a letter from Swift. Please make him 
my compliments, and tell him I shall not fail of an- 
swering him by the first opportunity. 

The following letter to Mr. Fitch was dated White 
Plains, July 30th, 1778. 

My Old Friend, — I received yours of the 3d of 
June on the 29th of the same month, at Monmouth, 
the day after the action. I shall omit any account of 
that affair. You must have seen more particular ac- 
counts of it than I am able to give. Since we arrived 
at the Plains I had the pleasure of meeting Coggs- 
well and Barker again ; spent an evening with them 
and Selden at Stanford, on their march to the east- 
ward. 

You tell me that you have neglected the Muses of 
late ; I will venture to assign the ladies as the cause, 
and, indeed, I cannot blame you for paying them 
so much attention ; I should doubtless do the same. 
But, my dear friend, by this neglect of the Muses you 
not only injure yourself, but many heroes, who ex- 
pected, as the only reward of their services, to have 
their names hitched into rhyme by some poet. 

As rising gales 

That swell the spreading sails 

To waft the merchant o'er the main, 
As clouds, in vernal showers distill'd, 
Enrich the new-sown field, 

And joy the laboring swain. 
Such is the muse to tliose who run 

In virtue's arduous ways. 
She bids them here enjoy renown 

And sings to future times their praise. 



28 LIFE OF NATHANIEL CHIP MAN. 

You will give full credit when I tell you that I have 
just translated the above from Pindar. And to direct 
you in your duty, I shall give you another lesson from 
the same. 

Not Envy's self shall blast the praise 
Of those who gain the martial prize ; 
The muse on towering winor shall rise 

And sing them in immortal lays. 

But wisdom is the sacred gift of Heaven 

To use aright whate'er the gods have given. 

I fancy Pindar would shine, in my translation. A 
great pity it is that 1 have not leisure to give him to 
the world in a new dress. But this and many other 
plans of like importance are laid aside for want of 
time. I have only time to add I am truly yours. 

To Mr. Fitch, dated Camp, at Fredericksburg, Oc- 
tober 3, 1778. 

Dear Friend, — I lately saw a letter to our friend 

B , in which you make very kind mention of my 

name, but was not a little surprised that you have so 
long neglected to write me. I immediately examined 
the letters which have passed between us, and found 
you were one in my debt ; and depend on it, I shall 
demand payment without conscience. 

Before this reaches you, I shall, in all probability, 
have resigned. My wages, which are my sole de- 
pendence, are by no means equal to my expenses. I 
am already in debt, and a continuance in the service, 
to me affords no other prospect than that of utter 
ruin. If I resign, unqualified as I am for business, 
and without friends, at least powerful friends, 1 shall 
find myself extremely embarrassed — and often apply 



LIFE OF NATHANIEL CHIPMAN. 29 

to myself certain lines of Thomson with a little alter- 
ation : 

A quick returning pang 

Shoots tlirough the conscious heart where lionor still, 

And great designs against the oppressive load 

Of poverty, by fits impatient heave. 

Although it is a great mortification to me to resign, 
it is a greater to hold the rank, and not be able to 
support the character of a gentleman. I forbear any 
reflections on the country, yet I cannot but pity the 
condition of the oflicers, many of whom I know to be 
in a worse condition than myself, as they are more 
reduced, and have more to provide for. It is very 
shocking to think that many brave fellows who have 
been accustomed to command others, and to be treat- 
ed with respect, who have a thousand times exposed 
their lives, have spent their estates and ruined their 
constitutions in defence of their country, must soon 
with their famihes be reduced to want. And perhaps 
derided and insulted by those whom they have de- 
fended. Forbid it, humanity ! forbid it Heaven. You 
will, as a friend, pardon these apprehensions, gloomy 
indeed, but, as I think, founded in reason. 

I shall spend the winter in Salisbury, Connecticut, 
in the study of law ; though I cannot but regret 
that it is not in my power to spend considerable time 
in general studies, before applying myself to a par- 
ticular one. Opportunities of writing will doubtless 
be less frequent after I leave the service, but I shall 
embrace every one that occurs, and shall from your 
friendship expect the same. And I will also promise 
to write a better hand, or procure some one to copy. 



30 LIFE OF NATHANIEL CHIPMAN. 

Winter quarters are now in agitation. Litchfield is 
talked of for this division. Where they will be, is 
uncertain as yet. I think, from all appearances, we 
may reasonably conclude that the glorious contest 
draws near a glorious conclusion, when, with the 
blessing of heaven, we may enjoy the sweets of lib- 
erty in peace. 

To Mr. Fitch, dated Salisbury, 1st January, 1779. 

My dear Friend, — What mean you by silk bags ? 
Are you so unacquainted with modern fashions ? 
Such baofs have lonsj been out of fashion with law- 
yers. In their stead are introduced bags made of 
harpies' skins. They are covered with a very soft 
down, the color changeable like a chameleon, but not 
like them stuffed with air. Their properties are em- 
blematical not only of the present disposition of the 
fraternity, but of the whole human race. Although 
inanimate, they have a most voracious appetite. Had 
Solomon lived in these times, he would have found 
one thing more which never cries enough. The 
color, varying with the beholder's fancy, has such a 
peculiar magic, that whoever has once fixed his eyes 
upon them can never rest, until he has given up his 
whole interest to be devoured. 

- I have not yet taken the wrangler's, I would say, 
the attorney's oath, but expect to take it in March, 
and then I shall probably settle in Bennington, where 
l shall indeed be rara avis in terris, for there is not 
an attorney in the state. Think, Fitch, think what a 
figure I shall make, when I become the oracle of law 
to the state of Vermont. 



LIFE Of NATHANIEL CHIPMAN. 31 

To Mr. Fitch, dated Salisbury, IMarch 20th, 1779. 

Well, my dear friend, I have at length passed the 
Rubicon, and am in full march to the capital of the 
empire. In plain language, I have been dubbed an 
attorney, and propose, in a few days, to take up my 
abode in the state of Vermont. It would be the 
height of my wishes to spend the summer at our alma 
mater, with you and others of my classical friends. 
But I am obliged to bid adieu to all these charming 
prospects, and plunge into business. I must hope, 
however, by favor of the Muses, to participate in your 
happiness. But how, my friend, how happens it that 
you dechne the desk ? You, a person, as we thought, 
destined, by nature and inclination, to be an honor to 
that sacred employment. Are you deterred by a few 
of our classmates who are engaged in it, and who are 
a disgrace to the order, or rather to themselves in 
the order ? Though I wholly disclaim the thought of 
being a deist, as some have represented me, I own 
that I am somewhat liberal in my religious senti- 
ments, but not too liberal to believe that none can do 
more to promote the happiness of man, whether in 
public or private life, than a learned and pious clergy. 
After all, I say not this to deter you from the study of 
the law. 1 shoukl be very happy to have you as a 
brother as well as a friend in that profession. One 
thing, however, we must both forget, that is our diffi- 
dence ; it has no place at the bar. Ha, ha, ha. I 
cannot but laugh to think what a flash we shall make, 
when we come to be members of congress. And 
then again, I am vexed when 1 think how many steps 
there are by which we must mount to that pinnacle 



32 LIFE OF NATHANIEL CHIPMAN. 

of happiness. Let 's see. First, an attorney ; then, 
a selectman ; a huffing justice ; a deputy ; an assist- 
ant ; ^ a member of congress. Now, is not this a 
httle vexing ? However, we must make the best of 
it. Since we shall in future be at so great a distance 
from each other, I feel anxious for a continuance of 
our correspondence. Should Tracy remain through 
the summer at Litchfield, it may be carried on through 
him, or perhaps some other way more direct may be 
found. But the difficulty is, I shall not know to what 
place to direct my letters. Nor will you, for I am 
not fully determined in what place I shall settle. In 
the direction of your letters, in future, you will omit 
lieutenant. I shall not be known by that title in 
Vermont. 

The following is a copy of the letter in which 
Lieutenant Chipman resigned his commission. It 
is dated Camp Fredericksburg, October 10, 1778, 
and addressed to General Washington, the com- 
mander-in-chief. 

May it please your Excellency, — With reluct- 
ance would I quit the service of my country, could 
I subsist myself in it with honor. Every one must 
be sensible that a subaltern's wages are in no degree 
equal to his expenses ; he must necessarily have some 
other resources, or make a contemptible appearance ; 
he must, in fact, become a beggar. If I may be 
allowed to judge my own heart, I am ready, in behalf 
of my country, to sacrifice every consideration of 
interest as far as may be consistent with honor. 

* A representative in the assembly, a member of the court in Con- 
necticut. 



LIFE OF NATHANIEL CHIPMAN. 33 

AVlien I engaged in the service, I had no fortune of 
my own. My parents, on wliom alone was my whole 
dependence, were, the last year, driven from their 
habitation, plundered, and, for the present, reduced 
to poverty; so that my wages have been my only 
support. These, at first, afforded an honorable sub- 
sistence ; but, so far is this from being the case at 
present, that I find it impossible to continue in the 
service without involving myself deeper in debt, 
without the least prospect of being able to pay the 
debts which I have already contracted, unless I can 
obtain a dismission. I feel a great reluctance to that 
dependence which is the necessary consequence of 
being in debt; for, as I am unable to answer the 
demands of my creditors, it will be in their power to 
ruin me when they please. 

' It is, indeed, a great mortification to be obliged to 
resign, but a greater to hold the rank, while unable 
to support the character, of an officer. Under these 
circumstances, which are my own without exaggera- 
tion, I am persuaded that it is a duty which I owe 
to myself and others, if possible, to procure a dis- 
charge from the service. This is my request, which 
I hope, on a thorough examination, will not be 
thought unreasonable. ^ 

It seemed necessary to resort to the foregoing let- 
ters, they being the only source of information rela- 
tive to that part of his life which was spent in the 
army. It was indeed understood at the time, that he 
kept with him in the camp his Greek and Latin 
classics. And that instead of losing his knowledge 



34 LIFE OF NATHANIEL CHIPMAN. 

of the languages, after he left college, as is too often 
the case with college graduates, he made great profi- 
ciency in perfecting his knowledge of them. That 
he paid this attention to the languages while in the 
army is rendered very certain by the known fact that 
he paid the same attention to them in after hfe. He 
was frequently involved in business of a laborious 
and perplexing nature, and yet he would find time to 
devote to the acquisition of knowledge. And he 
always gained time by wasting less time in sleep than 
most others. Until the latter part of his life, from 
five to six hours sleep in twenty-four was all that his 
constitution required. While in college, and in his 
after life, he was in the habit of reading several 
hours by candlelight in the morning, before others 
were up, except during the short nights in summer. 
Fortunately, until near the close of his life, his eyes 
would bear this hard usage without injury. He un- 
doubtedly pursued this course while in the army, 
and must have found much time for reading and 
writing, especially while in winter quarters. And 
yet, notwithstanding his confirmed habit of improving 
every spare moment in his literary pursuits, 1 was not 
quite prepared for the fact, that so soon after the dust / 
and smoke of the battle of Monmouth had passed off*, , 
he was discovered intently engaged in translating 
Pindar. 

He was very fond of works of fiction, and read all 
the novels that came in his way, and read them with 
uncommon rapidity. But he resorted to novels and 
other light reading, for relaxation, when the mind 
was fatigued by intense application too long con- 



LIFE OF NATHANIEL CHIPMAN. S5 

tinued. He seemed to have no taste for those diver- 
sions to which most others resort lor relaxation. He 
never, either while in college or in after life, spent 
much time in the study of mathematics. Whenever 
he had occasion to solve a mathematical question, 
he would do it with great ease and rapidity, but 
he never attended to mathematical studies, for the 
purpose of disciplining his mind. He seemed to be 
conscious that his mind required no such discipline. 

It has been seen that he was admitted to the bar, 
in the county of Litchfield, and state of Connecticut, 
in March, 1779 ; after having studied law between 
four and five months. He soon after set out for 
Vermont, and arrived at his father's house in Tin- 
mouth on the 10th of April. He settled in Tinmouth, 
that being then the shire town in Rutland county, 
and commenced practice in the then four counties of 
Bennington and Rutland, Windham and Windsor, 
and was immediately a prominent member of the 
bar. He was most distinguished in the argument of 
questions of law to the court, but frequently argued 
causes to the jury with great eflfect. When it was 
his business to detect and expose fraud or oppression, 
he excelled as an advocate. But it was soon ob- 
served that he did not argue a bad cause as effect- 
ually as some others. And after I came to the bar 
I thought I could discover, especially if I could catch 
his eye, whether he had confidence in his case or 
not. The fact seemed to be, that he had acquired 
so confirmed a habit of seeking after truth con- 
scientiously, that he could not readily enter into the 



36 LIFE OF NATHANIEL CHIPMAN. 

feelings of his client, imbibe his prejudices, and with 
him have a full conviction of the justice of his cause, 
without which no advocate can make the most of a 
bad cause. I shall enlarge on this subject when I 
come to treat of his qualifications as a judge. 



CHAPTER II. 

Secret Negotiations with the British Authorities in Canada — Extract 
from the " Life of Brant," containing a Charge of Criminality against 
the Leading Men in Vermont — Vindication of those Patriots against 
the Charge. 

It has become a matter of history, and is generally 
known, that at the session of the legislature holden at 
Charlestown, in October, 1781, Governor Chittenden 
received a despatch from General St. Ledger, making 
an excuse for the killing of Tupper, an American 
sergeant, by a British scout ; and which necessarily 
disclosed the secret armistice, which had sometime 
before been agreed on, between the executive of this 
state and the governor of Canada. The contents of 
the despatch had in some way become known to cer- 
tain individuals who were not in the secret. This at 
once produced a high degree of excitement, and 
raised a clamor which it was necessary to silence 
without delay. And no other mode of doing this 
occurred at the time but that of remoulding the 
despatch, leaving out everything which related to the 
armistice, so that it might be communicated to the 
legislature. At this time there were two parties in 
the state. At the head of one party was Governor 
Chittenden, Ira Allen and others, called the old corps. 
Nathaniel Chipman was ranked with the opposition, 



38 LIFE OF NATHANIEL CHIPMAN. 

yet Governor Chittenden had such confidence in his 
talents and patriotism, that he committed the despatch 
to him for revision ; which task he speedily per- 
formed, and in a satisfactory manner. For when the 
revised despatch was read in the assembly, they were 
satisfied that their suspicions had been without foun- 
dation ; the excitement was allayed, and the legisla- 
ture proceeded with the ordinary business of the 
session. It will be proper, in this place, to make some 
remarks upon this secret negotiation with the gover- 
nor of Canada, for the subject of this memoir was 
connected with it. 

Certain historians, unacquainted with the early 
history of this state, have not scrupled to charge 
Governor Chittenden and his compatriots with trea- 
son against the United States, for entering into a 
secret negotiation with their enemies, with the inten- 
tion of joining the British in the war of the revolu- 
tion — a charge without the least foundation in fact. 
And should the present generation sufter this stain to 
rest on the characters of our fathers, so distinguished 
among that band of patriots who achieved our inde- 
pendence, it would indicate a degeneracy which they 
have not yet reached. Facts, which have ever been 
known to the people of this state, will convince 
every unprejudiced mind that, not only were Governor 
Chittenden and the executive council of this state 
actuated by the purest patriotism, but that their 
sagacity and wisdom were remarkably conspicuous 
through the whole of the negotiation, from the com- 
mencement to its close ; a period of several years ; 
and that it proved, as they intended and foresaw it 



LIFE OF NATHANIEL CHIPMAN. 39 

would prove, as beneficial to the United States as to 
the people of this state. 

At the commencement of the revolutionary war, 
the people on the New Hampshire grants were more 
united in defence of the country, than the people in 
any one of the then United States. A less propor- 
tion of tories were found among them than were 
found in the other states. The causes of this are 
obvious to those who were intimately acquainted 
with our early history. Great numbers of the early 
settlers on the New Hampshire Grants, were of the 
sect of new-lights or separates, who fled from perse- 
cution in the New England States, and found an 
asylum here, where they enjoyed their religious lib- 
erty. And history informs us that every people on 
earth who have by persecution been forced to con- 
tend for their religious liberty, have ever been pre- 
pared to contend with equal perseverance for their 
civil rights. Accordingly, in the contest with Great 
Britain for our civil and political rights, this sect of 
Christians in the New Hampshire grants were firmly 
united in the cause of their country. It is believed 
there was not a single exception. 

Add to this, that the people of this territory had for 
a number of years been united and organized in op- 
position to the unjust claim of New York, and had 
thus far been successful. When therefore their rights 
were invaded from another quarter, they were per- 
fectly prepared for resistance. They had no habit of 
quiet submission to the powers that be, to be broken 
up, but were already harnessed for the conflict. Still 
further, the government of Great Britain had decided 



40 LIFE OF NATHANIEL CHIPMAN. 

that this territory was within the jurisdiction of New 
York. Nothing therefore was to be expected from 
that government but a confirmation of the New York 
title, should the United States fail of establishing their 
independence. On the other hand they had reason 
to hope, that if the United States should achieve 
their independence, the claim of New York would be 
set aside, and Vermont would become an indepen- 
dent state. Such a people, thus situated, could not 
but be united as they were in the cause of their 
country, and support it as they did to the last, with 
unabated ardor. Could such a people have been 
influenced to join their enemies? a step forbidden 
alike by patriotism and by self-interest. 

Again, after the battle of Bennington, and the 
capture of Burgoyne, scarce a doubt was entertained 
that the United States would achieve their inde- 
pendence. In what situation, then, was Vermont to 
be placed by this secret negotiation ? Was she to 
become a British province, or was she to be an inde- 
pendent state under the protection of Great Britain ? 
In other words, in case of a war between the United 
States and Great Britain, was this to be made the 
common fighting ground, and the inhabitants exposed 
to be plundered by both armies ? 

I had proceeded thus far, calculating to conclude 
the subject with some brief remarks — believing that, 
from what has been said, it would be admitted by all, 
that there is not the least foundation for the charge of 
criminality against the leading men in Vermont, in 
their secret negotiation with the British. But on re- 
viewing the subject, I am satisfied that duty requires 



LIFE OF NATHANIEL CHIPMAN. 41 

a further examination of it. Can we be satisfied ? 
Can we be excused, if we sufler the character of our 
patriot fathers, who achieved the independence of 
the state, and who acted so distinguished a part in 
achieving our national independence, to go down to 
posterity, stained with the most unfounded charges of 
treason against their country, without showing, as it 
is in our power to do, that the overt acts of treason 
specified, were dictated by the purest patriotism, and 
as intended, alTorded essential aid in the war of in- 
dependence ? This must not be, but their acts and 
intentions must be truly stated, that posterity may 
have a full knowledge of their character. I feel this 
duty to be more imperative, because this charge, 
made in the most formal manner, with a detail of the 
evidence in support of it, is contained in that interest- 
ing work, " The Life of Joseph Brant," a work which 
will be read with interest by future generations. The 
author has collected and detailed all the evidence on 
which he founds his charge, and on which he pro- 
nounces sentence. Now to me this evidence appears 
not only insufficient to prove the charge, but wholly 
irrelevant. Yet I have good reason to distrust my 
own judgment in relation to the weight of this evi- 
dence, as I have a personal knowledge of the facts in 
the case. For although I was too young at the time 
of this secret negotiation to be an actor in public 
affairs, yet I lived with my brother, who was a 
principal actor in all public transactions at that day, 
and, as we have seen, was concerned in this negotia- 
tion ; and from him I had at the time a knowledge of 
it, liom near the commencement to the close. But 



42 LIFE OF NATHANIEL CHIPMAN. 

never did I hear from him, or any one of the lead- 
ing men, an intimation that they thought of com- 
plying with the propositions of the British. But, on 
the contrary, whenever they met, this secret negotia- 
tion was usually a subject of merriment and exulta- 
tion, that the British were so completely, and so long 
deceived, to their own injury, and our advantage. 
As I have said, I must be a very incompetent judge 
of the weight of the evidence which Mr. Stone has 
adduced, to prove a charge which I knew to be un- 
founded. Surely then, the reader will think it quite 
reasonable, that I submit the evidence to his better 
judgment, with such remarks as to its relevancy and 
weight as shall occur to me. 

To do this fairly, and to enable the reader to form 
a satisfactory opinion in the case, I regret that it is 
necessary to make the following long extract from 
the second volume of the " Life of Brant," p. 137. 

" A summary view of the controversy between 
New York and the people of the New Hampshire 
Grants, has already been given ; in addition to which, 
several incidental allusions have been made to the 
equivocal movements and intentions of Ethan Allen. 
Reference was also made, by way of a note in the 
preceding chapter, to a special message from Gov- 
ernor Clinton to the legislature of New York, com- 
municating important information respecting the de- 
signs of Allen and his associates, which had been 
derived from two prisoners who had escaped from 
Canada in the autumn of the present year — John 
Edgar and David Abeel. The substance of the state- 
ments of these men was, that several of the leading 



LIFE OF NATHANIEL CHIPMAN. 43 

men of the New Hampshire Grants were forming an 
alliance with the king's officers in Canada. Among 
these leaders were Ethan and Ira Allen, and the two 
Fays. A man named Sherwood, and Doctor Smith 
of Albany, whose name has already been mentioned, 
were the agents of the negotiation on the part of Great 
Britain ; and their consultations were sometimes held 
at Castleton, on the Grants, and sometimes in Can- 
ada. According to the statement of Edgar, it was 
understood that the Grants were to furnish the kinij 
with a force of two thousand men. Mr. Abeel's 
information was, that fifteen hundred was the number 
of men to be furnished, under the command of Ethan 
Allen. ]\Ir. Abeel also stated, that Ethan Allen was 
then in Canada upon that business, and that he had 
seen Major Fay at the Isle au Noix, on board of one 
of the king's vessels ; and that he. Fay, had exchanged 
upward of thirty Hessians, who had deserted from 
Burgoyne's army, delivering them up to the British 
authorities. The statements of Edgar and Abeel, 
the latter of whom had been taken a prisoner at Cats- 
kill the preceding spring, were given under the 
sanction of an oath ; and, although they were not 
fellow-prisoners, — and although they had derived 
their information from different sources, — and al- 
though escaping at difl^erent times, under dissimilar 
circumstances, and by routes widely apart, — yet 
there was a strong coincidence between them. A 
third account, submitted to the legislature by the 
governor, was somewhat different, and more particu- 
lar as to the terms of the proposed arrangement. 
In this paper, it was stated, first, that the territory 



44 LIFE OF NATHANIEL CHIPMAN. 

claimed by the V^crmontese should be formed into 
a distinct colony or government. Secondly, that the 
form of government should be similar to that of 
Connecticut, save that the nomination of governor 
should be vested in the crown. Thirdly, that they 
should be allowed to remain neutral, unless the war 
should be carried within their own territory. Fourth- 
ly, they were to raise two battalions, to be in the pay 
of the crown, but to be called into service only for 
the defence of the colony. Fifthly, they were to be 
allowed a free trade with Canada. General Haldi- 
mand had not deemed himself at liberty to decide 
definitely upon propositions of so much importance, 
and had accordingly transmitted them to England for 
the royal consideration. An answer was then ex- 
pected. Such was the purport of the intelligence ; 
and such was the weight of the testimony, that the 
governor did not hesitate to assert that they " proved 
a treasonable and dangerous intercourse and connec- 
tion between the leaders of the revolt in the north- 
eastern part of the state and the common enemy." 

The fact is, according to the admissions, and the 
documents published, by the Vermont historians them- 
selves, that the people of Vermont, though doubtless 
for the most part attached to the cause of the country, 
nevertheless looked upon New York " as a more 
detested enemy " than Great Britain ; and the officers 
of the latter were not slow in their efforts to avail 
themselves of the schism. Accordingly, Colonel 
Beverly Robinson sought to open a correspondence 
with Ethan Allen as early as March, 1780. The first 
letter was handed to Allen in Arlington, but was not 



LIFE OF NATHANIEL CHIPMAN. 45 

answered. A second letter from Robinson was re- 
ceived by Allen in February, 1781, which, with the 
first, he enclosed to congress in March, accompanied 
by a letter, plainly asserting the right of Vermont to 
agree to a cessation of hostilities with Great Britain, 
provided its claims, as a State, were still to be rejected 
by congress. It does not appear, however, that the 
threat had any effect upon that body. 

" In the months of April and IMay following, the 
governor and council of Vermont commissioned 
Colonel Ira Allen, a brother of Ethan, to proceed 
to the Isle au Noix, to settle a cartel with the British 
in Canada, and also, if possible, to negotiate an 
ai-mistice in favor of Vermont. The arrangements 
for this negotiation were conducted with the most 
profound secrecy, only eight persons being cognizant 
of the procedure. Colonel Allen, accompanied by 
one subaltern, two sergeants, and sixteen privates, 
departed upon his mission on the first of May, and, 
havinor arrived at the Isle au Noix, entered at once 
upon his business; negotiating with Major Dundas, 
the commander of that post, only on the subject of 
an exchange of prisoners, but more privately with 
Captain Sherwood and George Smith, Esq., on the 
subject of an armistice. The stay of Allen at the 
island was protracted for a considerable time, and the 
conferences with the two commissioners, Sherwood 
and Smith, on the subject of the political relations 
of Vermont, were frequent, but perfectly confidential ; 
Allen carefully 'avoiding to write anything, to guard 
against accidents. But, from the beginning, it seems 
to have been perfectly understood, by both parties, 



46 LIFE OF NATHANIEL CHIPMAN. 

that they were treating ' for an armistice, and to 
concert measures to estabhsh Vermont as a colony 
under the crown of Great Britain.' In the course 
of the consultations, Allen freely declared ' that such 
was the ^^xtreme hatred of Vermont to the State of 
New York, that, rather than yield to it, they would 
see congress subjected to the British government, 
provided Vermont could be a distinct colony under 
the crown on safe and honorable terms.' He added, 
' that the people of Vermont were not disposed any 
longer to assist in establishing a government in Amer- 
ica, which might subject them and their posterity 
to New York, whose government was more detested 
than any other in the known world.' These were 
encouraging representations in the ears of his ma- 
jesty's officers ; and, after a negotiation of seventeen 
days, the cartel was arranged, and an armistice ver- 
bally agreed upon, by virtue of which hostilities were 
to cease between the British forces and the people 
under the jurisdiction of Vermont, until after the 
next session of the legislature of Vermont, and even 
longer, if prospects were satisfactory to the com- 
mander-in-chief in Canada. Moreover, as Vermont 
had then extended her claims of territory to the 
Hudson River, all that portion of New York lying 
east of the river, and north of the western termination 
of the north line of Massachusetts, was included in 
the armistice. It was also stipulated, that, during 
the armistice, the leaders in Vermont were to pre- 
pare the people by degrees for a change of govern- 
ment, and that the British officers were to have free 
communication through the territory of the new 
State, as it claimed to be. 



LIFE OF NATHANIEL CHIPMAN. 47 

"But, notwithstanding the veil of secrecy drawn 
over the proceedings, dark suspicions got afloat that 
all was not right. The sincere whigs among the 
people of the Grants became alarmed, and were 
apprehensive that they might be sold ere yet they 
were aware of it. When the legislature met, the 
people, whose jealousies had been awakened, flocked 
to the place of meeting, to ascertain whether all was 
well ; and it was only by much dissimulation on the 
part of those who were in the secret, that the friends 
of the Union were pacified. There were also other 
spectators present, from different States, who felt an 
equal interest to ascertain whether the great cause 
of the nation was not in danger of being compro- 
mised. The result was, that the agents succeeded in 
throwing dust into the eyes of the people ; and so 
adroit was their management, that the Aliens held 
communication with the enemy during the whole 
summer, without detection. On more than one oc- 
casion, British guards, of several men, came to the 
very precincts of Arlington, delivering and receiving 
packages in the twilight. 

" In September the negotiations were renewed, the 
commissioners of both parties meeting secretly at 
Skenesborough, within the territory of New York, 
and further progress was made in the terms of the 
arrangement, by which Vermont was in due time to 
throw herself ' into the arms of her legitimate sover- 
eign.' Sir Frederick lialdimand, however, was be- 
coming impatient of longer delay ; and a strenuous 
eflbrt was made for an immediate and open declara- 
tion on the part of Vermont. To this proposition 



48 LIFE OF NATHANIEL CHIPMAN. 

the Vermont commissioners, Ira Allen, Joseph Fay, 
and a third person, whose name is not given, pleaded 
that there had not yet been time to prepare the 
people for so great a change, and that they should 
require the repose of the approaching winter for that 
object. It was at length stipulated, however, that, 
inasmuch as the royal authority had been received 
by Sir Frederic Haldimand for that purpose, an army 
might ascend the lake, with proclamations oflering to 
confirm Vermont as a colony under the crown, upon 
the principles and conditions heretofore indicated, on 
the return of the people to their allegiance ; the 
commissioners interposing a request, that the general 
commanding the expedition would endeavor to ascer- 
tain the temper of the people before the proclamation 
should be actually distributed. The legislature of the 
Grants assembled at Charlestown in October. Mean- 
time, General St. Leger, agreeably to the arrange- 
ment with Allen and Fay, ascended the lake to 
Ticonderoga, with a strong force, where he rested. 
In order to save appearances, the Vermontese had 
stationed a military force on the opposite shore, under 
the command of General Enos, to whom was neces- 
sarily confided the secret. But on neither side would 
it answer to confide the secret to the subordinates. 
They must, of course, regard each other as enemies 
in good faith ; and the fact that they did so consider 
themselves was productive of an affair, which placed 
the \'ermontese in a peculiarly awkward predicament. 
The circumstances were these : In order to preserve 
at least the mimicry of war, scouts and patrols were 
occasionally sent out by both parties. Unluckily, 



LIFE OF NATHANIEL CHIPMAN. 49 

one ot* these Vermont patrols happened one day to 
encounter a similar party from the army of St. Leger. 
Shots were exchanged with hearty good will ; the 
Vermont sergeant fell, and his men retreated. The 
body was decently interred by order of General 
St. Leiier, who sent his clothes to General Enos, 
accompanied by an open letter, apologizing for the 
occurrence, and expressing his regret at the result. 
It was hardly probable that an unsealed letter would 
pass through many hands, and its contents remain 
unknown to all save the person to whom it was 
addressed. Such, certainly, was not the fact in 
regard to the letter in question. Its contents trans- 
pired; and great was the surprise at the civility of 
General St. Leger, in sending back the sergeant's 
clothes, and deploring his death. A messenger was 
despatched by General Enos to Governor Chittenden 
at Charlestown, who, not being in the secrets of his 
employers, failed not, with honest simplicity, to pro- 
claim the circumstances of the sergeant's death, and the 
extraordinary message of General St. Leger. The con- 
sequence was excitement among the people assembled 
at Charlestown, attended with a kindling feeling of 
distrust. ' Why should General St. Leger send back 
the clothes?' 'why regret the death of an enemy?' 
were questions more easily asked by the people than 
capable of being safely and ingenuously answered 
by their leaders. The consequence was, a popular 
clamor unpleasant to the ears of the initiated. Major 
Runnels confronted Colonel Ira Allen, and demanded 
to know why St. Leger was sorry for the death of 
the scrircant. Allen's answer was evasive and un- 



60 LIFE OF NATHANIEL CHIPMAN. 

satisfactory. The major repeated the question, and 
Allen replied that he had better go to St. Leger at 
the head of his regiment, and demand the reason for 
his sorrow in person. A sharp altercation ensued, 
which had the effect, for a short time, of diverting 
the attention of the people from the despatches, 
which they had been clamoring to have read. These 
were precious moments for the governor and the 
negotiators with the enemy. The board of war 
was convened, the members of which were all in 
the secret, and a set of pretended letters were hastily 
prepared, from such portions of General Enos's 
despatches as would serve the purpose in hand, 
which were read publicly to the legislature and the 
people, and which had the effect of allaying the ex- 
citement and hushing suspicion into silence. 

" Meantime, a rumor of the capture of Cornwallis 
and his army at Yorktown was wafted along upon 
the southern breeze ; the effect of which was such 
upon the people, as to induce Allen and Fay to write 
to the British commissioners with St. Leger, that it 
would be imprudent, at that particular conjuncture, 
for him to promulgate the royal proclamation, and 
urging delay to a more auspicious moment. The 
messenger with these despatches had not been longer 
than an hour at the head-quarters of St. Leger at 
Ticonderoga, before the rumor respecting Cornwallis 
was confirmed by an express. The effect was pro- 
digious. All ideas of further operations in tliat 
quarter were instantly abandoned ; and, before eve- 
ning of the same day, St. Leger's troops and stores 
were re-embarked, and, with a fair wind, he made 
sail immediately back to St. Johns. 



LIFE OF NATHANIEL CHIPMAN. 51 

" From this narrative of facts, as disclosed in Lon- 
don, many years afterward, by Colonel Ira Allen 
himself, it will be seen at once that General Heath 
was in error, when, in his general orders of Novem- 
ber 9th, he attributed the inaction of General St. 
Leger, and his ultimate retreat, to the preparations 
of Lord Stirling and Generals Stark and Gansevoort 
for his reception. 

" The digression which has been judged necessary, 
to elucidate this portion of the operations in the 
north during the summer and autumn of 1781, may 
by some readers be thought wide of the leading 
design of the present work. Still, it is believed that, 
to a majority of the public, the facts detailed in this 
connection will be new, as they must be curious in 
the estimation of all. They are, at the same time, 
held to be essential to a just appreciation of the diffi- 
culties with which the military officers in the northern 
department, and the government of the State of New 
York, were obliged to contend during the period 
under consideration. Strong light is also reflected 
by them upon that portion of the history of the war 
itself with which they are interblended. Every close 
reader of American history is aware that there was 
a correspondence, of some description, between the 
leaders of the people occupying the New Hampshire 
Grants and the common enemy, during the later 
years of the revolutionary war. But neither the 
precise character, nor the extent, of that correspond- 
ence, has been generally understood ; while it has, 
for obvious reasons, been the desire of those most 
directly concerned in those matters, to represent the 



52 LIFE OF NATHANIEL CHIFMAN. 

whole as a game of dissembling with an enemy who 
had attempted to tamper with the patriotic sons of 
the Green Mountains.^ Be this as it may, it is in 
the secret proceedings of the Vermont conspirators, 
that the key is found to the mysterious movements 
of the enemy on Lake Champlain, which had so 
greatly harassed the American commanders at the 
north during that autumn." 

We will take the author's statement of the question 
which he has decided, and which we propose to 
examine. Were Governor Chittenden and the lead- 
ing men of Vermont, in their secret negotiations 
with the British, playing a game of dissembling with 
an enemy who had attempted to tamper with the 
patriotic sons of the Green Mountains, or had those 
leading men a serious intention to listen to the 
proposals of the British? The author has decided 
this question against the leading men of Vermont, — 
that they had a serious intention to listen to the pro- 
posals of the British. As this decision is a reversal 
of the decision made by Sparks and others, it must 

' " Sparks, adopting the views of earlier writers, has noticed the case in 
this favorable aspect, in his late sketch of the life of Ethan Allen. The 
author certainly agrees with Mr. Sparks in the opinion that ' there was 
never any serious intention, on the part of the Verraontese, to listen to 
the British proposals.' But, with great deference, after a full examina- 
tion of the case, the same cannot be said of the leaders of the Ver- 
montese. They had determined that New York should be dismembered ; 
and, if they could not force themselves into the confederation as a state, 
they were willing to fall back into the arms of Great Britain as a colony. 
But it is very certain, from the conduct of the people of the Grants whea 
they heard of St. Leger's regrets at the killing of the sergeant, that they 
were prepared for no such arrangement." 



LIFE OF NATHANIEL CHIPMAN. 63 

be taken that Mr. Stone has stated all the evidence 
on which he founded his opinion ; and it seems that 
he considered most of it as new-discovered evidence, 
unknown to those who had formed a different opinion 
in the case. Such, I understand, is the evidence of 
Edgar and Abeel, on which great reliance seems to 
be placed. A statement of facts is made to establish 
their credibility, or rather to remove all suspicion 
that they might have been connected together, and 
fabricated their testimony. Now, had their evidence 
the least bearing on the point in question, I should 
not hesitate to say that it is deserving of no credit 
whatever. Where, and how, were the thirty Hessian 
deserters from Burgoyne's army caught by Major 
Fay, to be delivered up to the British authorities ? 
Great numbers of the German soldiers, principally 
young men, who took a fancy to this country, and 
determined not to return to their father-land, deserted 
from Burgoyne's army after the capture, and settled 
in all parts of New England. But how, and by 
whom, was Major Fay authorized to seize these 
peaceable citizens, for such they were, and deliver 
them up to the British authorities? And, surely, 
it was not by their own consent that they were deliv- 
ered up for punishment. This part of the testimony 
of these witnesses, then, is a sheer fabrication, and 
discredits their whole testimony. But, as before 
hinted, it is wholly unnecessary to impeach these 
witnesses, for the obvious reason that, if true, their 
testimony has no bearing on the point in question. 
It only proves what was known to all, and admitted 
by all, that the leading men in Vermont entered into 



54 LIFE OF NATHANIEL CHIPMAN. 

a secret negotiation with the British authorities in 
Canada, and nothing more ; having no tendency to 
prove with what design they entered into that nego- 
tiation. 

The next evidence, is a more particular account of 
the negotiation communicated to the legislature of 
New York by Governor Clinton, if, indeed, it can be 
considered as evidence, it being only the declaration 
of Governor Clinton, that such was the purport of 
the intelligence which he had received, and such was 
the weight of the testimony, referring, of course, to 
the testimony of Edgar and Abeel, that he did not hes- 
itate to assert that they proved a treasonable and dan- 
gerous intercourse and connection between the lead- 
ers of the revolt, in the north-eastern part of the 
state, and the common enemy. It is obvious that 
this adds nothing to the testimony of Edgar and Abeel, 
except the opinion of Governor Clinton. And this 
without the slightest imputation upon the governor, 
we may say, is deserving of no weight. Extremely 
jealous as he was of the people of Vermont, informa- 
tion of a secret negotiation between them and the 
common enemy, would, to his mind, be the clearest 
evidence of treason. Indeed, every one whose mind 
was unbiased, being informed only of the existence 
of the secret negotiation, would have formed the same 
opinion. 

The author then states the fact, that the people of 
Vermont, although doubtless for the most part attach- 
ed to the cause of their country, nevertheless looked 
upon New York as a more detested enemy than 
Great Britain ; a statement not exactly in accordance 



LIFE OF NATHANIEL CHIPMAN. 66 

with the final decision of the author. The next evi- 
dence is, that in the month of March, 1780, Ethan 
Allen received a letter from Beverly Robinson, a 
British officer, of which letter it does not appear that 
any notice was taken. But on the receipt of a second 
letter from Robinson in February, 1781, Allen trans- 
mitted both letters to congress, accompanied by a 
letter from himself, in which he asserted the right in 
Vermont to agree to a cessation of hostilities with 
Great Britain, provided its claims as a state were still 
to be rejected by congress. It does not appear, says 
the author, that the threat had any effect upon that 
body. And why r Because congress knew that trai- 
tors never truly disclose their designs to those whom 
they are betraying. The next evidence is a more de- 
tailed account of the negotiation at the Isle au Noix. 
The author says, that in the course of the consulta- 
tion, Ira Allen freely declared, that such was the ex- 
treme hatred of Vermont to the state of New York, 
that rather than yield to it, they would see congress 
subjected to the British government, provided Ver- 
mont could be a distinct colony under the crown, on 
safe and honorable terms. He added, that the peo- 
ple of Vermont were not disposed any longer to assist 
in establishing a government in America, which might 
subject them and their posterity to New York, whose 
government was the most detested in the known world. 
These, it is said, were encouraging representations in 
the ears of his majesty's officers. They were so, be- 
cause Allen forgot to relate the concluding part of 
the story — that nothing on earth could ever induce 
the people of Vermont to submit cither to the govern- 



56 LIFE OF NATHANIEL CHIPMAN. 

ment of New York or to the government of Great 
Britain. After a negotiation of seventeen days, an 
armistice was verbally agreed upon, by virtue of 
which, hostilities were to cease between the British 
forces and the people of Vermont until after the next 
session of their legislature. 

It is unnecessary to examine the evidence contain- 
ed in the extract any farther in detail ; but the reader 
is requested to examine it, and if he can find any 
fact proved, or even stated, inconsistent with the alle- 
gation that the leading men in Vermont were only 
playing a game of dissembling with the enemy, hav- 
ing no intention of listening to their proposals, let it 
be noted, and have its due weight. It is presumed, 
however, that he will find nothing of the kind, and 
that he will take this general view of the subject. 
The British authorities in the province of Canada, 
knowing that for a number of years a bitter conten- 
tion had existed between the people of Vermont and 
the government of New York, and knowing, also, as 
they undoubtedly did know, that congress had passed 
a resolution, declaring that the independent govern- 
ment, attempted to be established in Vermont, could 
derive no countenance or support from any act or 
resolution of congress ; and being deceived, as the 
British were, through the whole of the revolutionary 
war, in relation to the number of loyalists in the 
States, and having no adequate knowledge of their 
rebellious subjects, they naturally compared them to 
a British mob ; an ignorant, unstable, changeable 
multitude, who migiit be easily induced to return to 
their allegiance under the crown ; and they had no 



LIFE OF NATHANIEL CHIPMAN. 57 

doubt but that the people of Vermont might be 
induced to separate themselves from the United 
States, and become a British colony. Entertaining 
these views, the two letters were written by Robinson 
to Allen, proposing an armistice. Governor Chit- 
tenden, and other leading men in Vermont, being 
consulted, it was concluded that something might be 
made out of these letters by transmitting them to 
congress, at the same time asserting the right of 
Vermont to agree to a cessation of hostilities with 
Great Britain, calculatinij that congress mis^ht be 
induced to delay a decision in favor of New York, 
lest they might drive Vermont to form a connection 
with the British, especially as congress had been 
divided on all questions relating to Vermont. And 
who will say that their calculations wholly failed as 
to the effect of their proceedings upon congress? 
Without adverting to these proceedings, who will un- 
dertake to account for the singular, vascillating policy 
of congress in relation to Vermont during the whole 
of the revolutionary war. The leading men in Ver- 
mont had a still stronger inducement to ajrree with 
the British on an armistice. Our frontiers were ex- 
posed to the enemy, who then had in the province of 
Canada a disposable force of seven thousand men. 
But an armistice is agreed on by belligerents, with a 
view to ulterior arrangements. To induce the Brit- 
ish, then, to agree upon an armistice, it was neces- 
sary on the part of Vermont to make such proposi- 
tions to them as they should think would be advan- 
tageous to themselves, and such as might appear to 
be made with sincerity on the part of Vermont. And 



68 LIFE OF NATHANIEL CHIPMAN. 

what propositions could be made more advantageous 
to the British, or more natural on the part of Ver- 
mont, than the proposition that Vermont should de- 
tach herself from the United States and become a 
British province. Accordingly this proposition was 
made and an armistice agreed on. How natural, 
then, was the declaration of Ira Allen, during his ne- 
gotiation with the British at the Isle au Noix. The 
author says, that AWen freely declared, &c. ; the word 
freely is evidently used to give to the transaction a 
darker shade ; but he might have given the transac- 
tion a much darker shade, in his own view, had he 
said that Allen declared in the most positive manner, 
and it would also have been more correct. For 
Allen's object was to impress on the minds of the 
British negotiators the strongest conviction that the 
leading men in Vermont had fully determined to de- 
tach themselves from the United States, and join the 
British in the war of the revolution. And Allen was 
not a man to fail for want of a sufficient degree of 
assurance. These observations apply to all the de- 
clarations and transactions related in the extract; 
and, on the ground that it was all a game of dissem- 
bling to deceive the British, never was a more natu- 
ral, artful and politic course pursued. But they met 
with the greatest difficulty in furnishing a satisfactory 
excuse to the British for their delay in bringing the 
business to a final conclusion. And this was indispen- 
sable ; for the moment they were brought to this point, 
there must have been an end of the armistice. And 
the only excuse for delay which presented itself, was, 
that the people of Vermont were not prepared ; that 



LIFE OF NATHANIEL CHIP MAN. 69 

time was required to bring them over to their views. 
A great length of time must liave been required for 
this, for notliing can be more clear, than that the 
leading men in Vermont never made a single effort, 
even to abate the ardor of the people in the cause of 
their country. Nothing of the kind was suspected at 
the time ; no writer since, has noticed the subject at 
all, nor has Mr. Stone himself even stated anything 
of the kind. On the contrary, it appears by his note 
at the close of the extract, that he considered that the 
body of the people of Vermont remained uncorrupt- 
ed and steadfast in the cause of their country to the 
last. We have seen how sensitive the people were 
on the subject of a negotiation with the governor of 
Canada, and this as late as October, 1781. Certain 
it is, then, that if any efforts had been made to abate 
their ardor in the cause of their country, they had 
been singularly unsuccessful. But all who knew Gov- 
ernor Chittenden, knew that he never could have 
made an effort of the kind. True, he had a com- 
manding influence with the people, but he had ac- 
quired that influence by his zeal in the cause of his 
country, and his unremitted exertions to establish the 
independence of the United States. And all have 
admitted that he was a man of great sagacity, and 
distinguished for his profound knowledge of human 
nature. And surely he had some knowledge of his 
own Green Mountain Boys. He knew well of what 
stuff they were made. Could he then ever have 
thoujrht of making tories out of such materials ? No. 
He never thought of making an efibrt of the kind. 
And it is believed, that in the year 1781, there was 



60 LIFE OF NATHANIEL CHIPMAN. 

scarcely a tory within the limits of Vermont. What 
lories there were in this territory at the commence- 
ment of the war of independence, separated them- 
selves from the whigs in the year 1777, and joined 
the enemy, when they were in possession of a part of 
this state. I have dwelt longer on this part of the 
subject, because the reader will perceive that if I am 
correct in this, that the leading men of Vermont never 
made any effort to induce the people to abandon the 
cause of their country and join the British — the ques- 
tion which we have been discussing is conclusively 
and finally settled. For these leading men well knew 
that if, by their secret negotiations, they made Ver- 
mont a British province, without the concurrence of 
the people, they would negotiate themselves into per- 
petual exile — if fortunate enough to escape a more 
summary punishment. 

Before coming to a conclusion, I cannot but state 
one fact which strikingly marks the character of our 
fathers. 

It appears very clearly, that through the whole of 
their negotiation with the British, they made not a 
single profession of loyalty to the British crown, or of 
attachment to the British government, or uttered an 
expression of dislike to our free institutions. Such 
was the strength of their moral principles, and so 
fixed their habit of adhering to the truth, that they 
could not at once learn how to utter a palpable false- 
hood. On a full and impartial view of the whole 
subject, it appears that the reader will arrive at the 
following conclusions: That the British authorities 
in Canada proposed to the leading men in Vermont 



LIFE OF NATHANIEL CHIPMAN. Gl 

a cessation of hostilities between the British forces 
and the people of Vermont, with a view to a negotia- 
tion by which Vermont should be detached from the 
United States, and become a British province. The 
leading men in Vermont being thus invited by the 
British to desert their country and join their enemies, 
felt themselves at liberty to accept of the proposals 
of the British for an armistice, and by means of de- 
ception to continue it so long as they should find it 
advantageous ; that they played their game so adroitly, 
and deceived the Ikitish so completely, that they were 
enabled to continue the armistice by which our fron- 
tiers were secured against the assaults of the enemy, 
until the close of the war, to the great advantage of 
the United States as well as this state. Thus, the 
British, undertaking to tamper with the patriotic sons 
of the Green Mountains, found their match, and were 
so completely duped and deceived, that their enemies 
alone were benefited by the armistice. The actors 
on the part of Vermont will ever be admired and ap- 
plauded for their wisdom and patriotism. And the 
character of Thomas Chittenden, Nathaniel Chip- 
man and their compatriots, will pass down through 
succeeding ages, to the last generations of men, as 
fair and untarnished as they were during their lives, 
and, as I trust, they appeared when called to give 
an account to that Being who had been graciously 
pleased to crown with complete success all their no- 
ble and patriotic exertions in the cause of their coun- 
try — the cause of liberty and the rights of man. ^ 

* TKe reader will find some further evidence upon the subject discussed 
ia this chapter, in a letter from Governor Chittenden to General Wash- 
ington, in the Appendix, No. VII. 

8 



CHAPTER III. 

Occasion and beneficial Operation of the Quieting Act — Mr. Chipman 
unsuccessful in his Farming and other Business — Resolution of the 
Legislature, by which certain Measuies proposed for the Relief of the 
People calculated only to increase and prolong their Sufferings, were 
postponed and defeated — Elected Assistant Judge of the Supreme 
Court. 

When the government was organized in this state, 
and justice began to be administered, it was soon 
found that a great portion of the settlers had pur- 
chased defective titles. A long time had elapsed be- 
tween the granting of the lands by New Hampshire 
and the organization of government in this state, 
during the whole of which time there was no office in 
which deeds could be recorded; and there was no 
place to which the purchaser could resort to ascer- 
tain in whom was the legal title to the lands, which 
he proposed to purchase. And in New England, pur- 
chasers were not accustomed to receive the title 
deeds, so as to have in their hands evidence of the 
title. Consequently it was soon found, that a man so 
disposed, could sell lands as well without the expense 
of a purchase as with. A number of swindlers took 
advantage of this state of things, and made a business 
of selling lands without making a single purchase. 
Simeon Sears was one of these primitive swindlers. 



LIFE OF NATHANIEL CHIPMAN. 63 

The following anecdote will show how notorious this 
mode of swindling had become. The City Hall in 
Albany was but thirty miles from Bennington, and 
some of the people of Bennington had been confined 
in it by the authorities of New York. The City Hall, 
of course, became a hated place, and an object of 
dread to the Green INIountain Boys, the more so after 
the act of outlawry against Allen and others. It there- 
fore became a subject of conversation at all their 
meetings. At length they began to devise ways and 
means for destroying it. And at one of the meetings 
a number of modes of effecting this were proposed, 
and among the rest several modes of blowing it up. 
" No," said Ethan Allen, wishing to direct their atten- 
tion from that dreaded object, " the better way will 
be to employ Sim Sears to sell the d — d thing." 

A great portion of the people being thus exposed 
to eviction by those who had the legal title, it could 
not be supposed that they would support a govern- 
ment, by the operation of which they were to lose 
their farms, rendered more dear to them by their long 
and doubtful struggle with New York in their defence, 
and by the hardships and privations which they had 
suffered in bringing them into a state of cultivation ; 
and it was absolutely necessary that some relief should 
be provided for them. Governor Chittenden very 
early discovered this, and he was precisely the man 
to devise the best mode of relief He had a strong 
sense of equity, and deeply sympathized with the un- 
fortunate settlers. And what peculiarly fitted him for 
this occasion was, that he knew nothing of the tech- 
nical niceties of the law. He therefore found notliin<i 



64 LIFE OF NATHANIEL CHIPMAN. 

in the way, nothing to prevent him from pursuing 
that course which was dictated by the principles of 
natural justice. And as the settlers had made im- 
provements on their farms at great expense, thereby 
greatly enhancing the value, he could not endure the 
gross injustice of permitting the legal owner, who had 
stood aloof, to recover the land with the value thus 
enhanced by the hard labor of the settlers. He there- 
fore proposed a law, giving to the settlers, in case of 
eviction, the full value of his improvements and half 
the rise of the land. A bill to this effect had been 
introduced several sessions before, but being opposed 
by almost all the lawyers in the state, it was post- 
poned to the October session of the legislature at 
Rutland, in 1784. The law, they said, makes every 
man a trespasser who enters on the land of another 
without license, and subjects him to damages for the 
trespass ; instead of this, you would compel the legal 
owner to pay him a bounty for his trespass. The bill 
was taken up again at this session, when Nathaniel 
Chipman was a member. But although there was a 
majority in favor of the principles of the bill, giving 
to the settler a remedy for his " betterments " against 
the legal owner, on a recovery in ejectment, yet they 
were not able to agree on the details of the bill. No 
wonder ; for it was a new case. They could avail 
themselves of no precedent ; they could resort to no 
form. Not being able to pass the bill at this session, 
and feeling a pressing necessity of passing it as soon 
as possible, the legislature had an adjourned session 
at Norwich, in June, 1785, that they might have 
time to mature and pass the bill, afterwards called the 



LIFE OF NATHANIEL CHIPMAN. 65 

quieting act. The bill was taken up at the adjourned 
session and referred to a committee, of which Nathan- 
iel Chipman was a member. When the bill came 
into his hands, he revised it in such a manner, that 
it passed the house by a decided majority. His strong 
sense of justice, and his comprehensive and discrimi- 
nating mind, enabled him as a legislator to adopt the 
law to any new state of things with the same ease 
with which, in the administration of justice, he applied 
the settled principles of law to new cases when they 
occurred, in such manner as to do perfect justice 
between the parties. Thus a law was passed by the 
legislature of Vermont, perfectly novel in its char- 
acter, yet so clearly founded on the principles of 
natural justice, that it has always been in great favor 
with the people of this state, and several of our sister 
states availing themselves of our invention and our 
experience, have adopted the same system. 

In the year 1782, his father conveyed to him his 
farm under a contract that he should support his 
father and stepmother during their hves, and educate 
his three younger brothers, which contract he fulfilled 
to the entire satisfaction of all concerned. But it 
proved to be an unfortunate contract for him. In- 
stead of making his farm profitable, his lucrative 
practice was charged as well with the support of his 
farm as with the support of his family. He culti- 
vated his farm with judgment, and never lost any- 
thing by visionary experiments ; but his losses were 
occasioned by his absence from home a great part of 
the year, and by a want of that minute attention to 
the details of the business, which is indispensable to 



66 LIFE OF NATHANIEL CHIPMAN. 

render farming profitable. For the profits will ever 
be made of little savings of time and expense, and 
w^ithout such economy a loss is almost certain. And 
it may be doubted whether any one, whose mind is so 
engrossed in the acquisition of knowledge, can ever 
pay that minute attention to little things which is 
indispensable to render farming profitable. In the 
year 1785 or 1786, he erected a forge, and procured 
a store of goods to aid in carrying it on, and soon 
became deeply involved. His brother, Darius Chip- 
man, who was in the practice of law at Rutland, then 
exchanged situations with him, removed to Tin- 
mouth, and in a few years paid the debts. They 
again changed situations, and Nathaniel again occu- 
pied the old farm in Tinmouth. He again sustained 
a loss by farming, and sold his farm. During the 
remainder of his life, he depended on his pension for 
a support. When he published his work on Govern- 
ment, he was compelled to ask assistance from his 
relatives. 

In the year 1786, the embarrassments and suffer- 
ings of the people, which have been adverted to, had 
increased and their passions had become more and 
more inflamed, until open resistance to the execution 
of the laws was apprehended. And when the legisla- 
ture convened at Rutland in October, it appeared that 
the passions, prejudices and turbulence of the people 
were fully represented in the numerous house of repre- 
sentatives. Unfortunately, the constitution had pro- 
vided no check upon that house, and, as was foreseen, 
it proved ^ stormy session. They passed, what was 
afterwards called, a specific tender act, obliging the 



LIFE OF NATHANIEL CHirWAN. 67 

creditor to receive on execution, at their appraised 
value, such articles of personal property as the debtor 
had contracted to pay. But this was not satisfac- 
tory to those who were as destitute of such articles 
of property as they were of money. Some were 
clamorous for a general tender act, obliging the cred- 
itor to receive on execution any articles of personal 
property which should be tendered by the debtor. 
Others strenuously insisted on a bank of paper mo- 
ney, and there was great reason to fear that one or 
both these measures would be adopted by the legis- 
lature. Nathaniel Chipman, who was in Rutland at 
the time, and who had witnessed the temper of the 
legislature, became alarmed, being fully satisfied that 
the measures proposed, if adopted, must greatly in- 
crease and prolong the sufferings of the people. Be- 
ing extremely anxious to devise some means by which 
these evils might be averted, he requested the follow- 
ing members of the legislature to meet at his room 
the next evening to hold a consultation on the sub- 
ject, namely, Gideon Olin, of Shaftsbury ; Elijah 
Dewey, of Bennington ; Lemuel Chipman, of Paw- 
let, and Thomas Johnson, of Newbury. The first 
question which occurred, after they came together, 
was, Are there any other members of the legislature 
who can be trusted, and safely admitted to join in 
our deliberations ? Several members were named, 
but not one, who in the opinion of those present, 
could be safely admitted. They were, therefore, com- 
pelled to rely on their own influence to carry such 
measures as they should devise. They then took a 
view of the whole ground ; the grievances of the 



68 LIFE OF NATHANIEL CHIPMAN. 

people, both real and imaginary, their inflamed pas- 
sions and the turbulent spirit of a great portion of 
them, the violence of the legislature, and the de- 
structive nature of the measures which were pro- 
posed, and the probability of their adoption, unless 
they could be postponed. They unanimously agreed 
that the popular current was too strong to be resist- 
ed ; that should they attempt to do this they would 
be swept along with it, and only add to its momen- 
tum, and render it more destructive ; and that they 
could therefore do nothing to any good purpose, un- 
less they could devise some means by which the pro- 
posed measures might be postponed until the passions 
of the people should have time to cool. Having this 
view of the subject, they drew up the resolution^ and 
preamble, as stated in Thompson's Civil History of 
Vermont, page 79. The next day the resolution was 
introduced, and in support of it it was observed, thcit 
the sufferings of the people had become so severe, 
that some relief was absolutely necessary ; and the 
great and important question was, what is the best 
mode of granting relief? Of this the people them- 
selves are the most competent judges — it ought, 
therefore, to be submitted to their decision. 

Some of the principal supporters of the measures 
before the legislature perceived the design of those 

' Resolved, that the people assemble in their respective towns on the 
first day of January, 1787, at the usual places of holding freemen's meet- 
ings, and there express, by yea or nay, their approval or disapproval, of 
emitting a small bank of paper money, on loan or otlierwise, of continu- 
ing the existing tender acts, and of a general tender act ; the yeas and 
nays on these subjects to be transmitted to the speaker of the assembly, 
to be a guide to the legislature at their next session. 



LIFE OF NATFIANIEL CIIIPAIAN. 69 

who supported the resolution ; that their sole ohjcct 
was to delay and finally defeat their favorite meas- 
ures. But those who supported the resolution, having 
the democratic side of the question, prevailed ; the res- 
olution passed, and the whole subject was postponed 
until the next session. I perceive here this singular 
coincidence. The above-named resolution passed on 
the 31st day of October, and on the same day a mob 
assembled at Windsor to stop the sitting of the county 
court 

At this session of the legislature, Nathaniel Chip- 
man was elected assistant judge of the supreme court, 
the first lawyer elected a judge of that court. At 
the end of the year he returned to his practice at 
the bar. Situated as he was on the bench, one of 
five judges, and he the only lawyer, it is believed that 
he did not at that time become very distinguished as 
a judge. ' 



CHAPTER ly. 

Correspondence between Nathaniel Chipman and Alexander Hamilton - 
Settlement of the Controversy with New York. 

When in the summer of the year 1788, it became 
evident that tlie constitution of the United States 
would be adopted by all tlie other states, and a na- 
tional government estabhshed, the attention of the 
most intclliijent men in the state was called to the 
pecuhar situation of Vermont. To remain a small 
independent state, between the United States and the 
British province of Quebec was not to be thought of, 
and to join the union, our controversy with New 
York remaining unsettled, and to subject our landed 
titles to the decision of the federal court, was con- 
sidered by many to be extremely hazardous. Nathan- 
iel Chipman was always fearful that, if the question 
should ever be brought before an impartial tribunal 
for decision, the New York title would be adjudged 
the better title. He had, therefore, been opposed to 
tlie granting of lands by this state, which had before 
been granted by New York. Having this view of 
the subject, he felt extremely anxious to devise some 
means by which tlie controversy with New York 
might be speedily adjusted. And in tlie early part of Ju- 
ly, a number of gentlemen, among whom were the Into 



LIFE OF NATHANIEL CHIPMAN. 71 

Judge Morris, then of Tinmouth, and the late Judge 
Olin, of Shaftsbury, met at his house in Tinmouth to 
hold a consultation on the subject, and they took this 
view of it. They said that Hamilton, Schuyler, Har- 
rison, Benson and other leading federalists in New 
York must be extremely anxious to have Vermont 
join the union, not only to add strength to the gov- 
ernment, but to increase the weight of the northern and 
eastern states. This was, therefore, the most favora- 
ble time for settling the controversy with New York, 
and it was agreed that Nathaniel Chipman should 
write to Hamilton on the subject. As the conven- 
tion was then sitting or about to convene at Pough- 
keepsie for the adoption of the United States constitu- 
tion by New York, of which Hamilton, Schuyler, 
Harrison and Benson were members, it was con- 
cluded to send the letter by express. The letter was 
delivered to Hamilton while attending the conven- 
tion, to which he returned an answer by the express. 
Every fact relative to the adoption of the federal 
constitution by the State of New York must ever 
be interesting ; for it was generally beheved, at the 
time, that if that state should reject the constitution, 
the national government would not be established. 
I was the bearer of the letter to Mr. Hamilton, and 
arrived at Poughkeepsie while the convention which 
adopted the constitution was in session. 1 repaired 
to Mr. Hamilton's quarters, and delivered the letter. 
General Schuyler, Richard Harrison, and Egbert 
Benson, were present. When Mr. Hamilton had 
read the letter, and communicated the contents to 
the others present, they all a[)pcared to feel a deep 



72 LIFE OF NATHANIEL CHIPMAN. 

interest in the subject, and made many inquiries rela- 
tive to the people of Vermont, particularly whether 
they could be induced to make a fair compromise 
of the claims of New York. When I was about to 
retire, Mr. Hamilton said to me that, at a certain 
hour the next morning, he would have an answer 
to my brother's letter prepared. I accordingly called 
on Mr. Hamilton at the hour named, and received 
the answer. Some conversation took place relative 
to my journey to New York, and I took liberty to 
say to Mr. Hamilton that I should be inquired of in 
New York what the prospect was in relation to the 
adoption of the constitution, and to ask him what 
I should say to them. His manner instantly changed, 
appearing to feel an intense anxiety on the subject, 
and he answered, " God only knows. Several votes 
have been taken in the convention, and it appears 
that there are about two to one against us." I was 
about to retire, when he added, in a most emphatic 
manner, " Tell them that the convention shall never 
rise until the constitution is adopted." I went on 
to New York, and, within a very few days, intelH- 
gence was received that the convention had adopted 
the constitution. This intelligence appeared to elec- 
trify the whole population, and produced the splendid 
celebration of the event which I witnessed ; the 
details of it would be here out of place. I was 
surprised that so great and so sudden a change in 
the convention had taken place, and heard nothing 
said of the means by which it had been effected. 
On my return to Vermont, my brother was absent, 
and I did not sec him until my return from college 



LIFE OF NATHANIEL CHIPMAN. 73 

the next autumn. I then related to him the conver- 
sation with Mr. Hamilton, and expressed my surprise 
that tlie convention adopted the constitution so soon 
after that conversation ; upon which he gave me the 
following explanation. 

Governor George Clinton, who was president of 
the convention, and had a commanding influence in 
the state, was strenuously opposed to the adoption 
of the constitution ; and Dr. Williams, of White 
Creek, now Salem, was an attached friend of Gov- 
ernor Clinton, and was, with him, opposed to the 
adoption of the constitution. Williams had great 
influence with nearly all the members of the con- 
vention from the northern part of the state. Of 
course, they were with him in the opposition. And 
thus, by the influence of Clinton and Williams, there 
was a decided majority of the convention opposed 
to the adoption of the constitution. Still, Hamilton 
did not despair of success, but made an effort to 
convince Williams that the establishment of the 
national government was indispensable to save the 
country from anarchy and total ruin ; and he suc- 
ceeded. Williams withdrew from the opposition, 
and brought with him most of the members from 
the northern part of the state. By this, a majority 
of the convention were found in favor of the con- 
stitution, and it was adopted by the State of New 
York. 

The following is all the correspondence on this 
subject between Nathaniel Chipman and Alexander 
Hamilton, which is to be found : 



74 LIFE OF NATHANIEL CHIPMAN. 



NATHANIEL CHIPMAN TO ALEXANDER HA3IILT0N. 

Tinmouth, July 15, 1788. 

Sir — Your character as a federalist, although per- 
sonally unknown to you, induces me to address you 
on a subject of very great importance to the state of 
Vermont, of which I am a citizen, and from which, I 
think, may be derived a considerable advantage to 
the federal cause. Ten states having adopted the 
new federal plan of government, that it will now suc- 
ceed is beyond a doubt. What disputes the other 
states may occasion, I know not. The people of this 
state, I beheve, might be induced almost unanimously 
to throw themselves into the federal scale, could cer- 
tain obstacles be removed. You are not unacquainted 
with the situation of a very considerable part of our 
landed property. Many grants were formerly made 
by the government of New York, of lands within this 
territory while under that jurisdiction. On the as- 
sumption of government by the people of this state, 
the same lands, partly it is said for want of informa- 
tion respecting the true situation of these grants, and 
partly from an opinion prevailing with some of our 
then leaders, that the New York grants within this 
territory were of no validity, have been granted to 
others under the authority of this state. 

It is now generally believed, that, should we be re- 
ceived into the union, the New York grants would, 
by the federal courts, be preferred to those of Ver- 
mont. The legislature of this state have in some in- 
stances made a compensation to the grantees under 
New York ; and I am persuaded would do the same 



rJFE OF NATTI\NTF,T, CTTIPIMAN. 75 

for Others were it in their power, but they are in pos- 
session of no more lands for that purpose. For these 
reasons, and I presume for no others, the governor 
and several gentlemen deeply interested in these lands 
granted by Vermont, have expressed themselves some- 
what bitterly against the new federal plan of govern- 
ment. Indeed, were we to be admitted into the 
union unconditionally, it would produce much confu- 
sion. Now, sir, permit me to ask whether you do 
not think it probable that the federal legislature, when 
formed, might, on our accession to the union, be in- 
duced on some terms, to make a compensation to the 
New York grantees, out of their western lands, and 
whether those grantees might not be induced to ac- 
cept such compensation ? Let me further suggest, 
whether it might not be favorable for Vermont to 
make some of those amendments which have been 
proposed by several states, the basis of her admission ? 
Could the difficulties I have mentioned be removed, 
all interests in opposition would be reconciled ; and 
the idea of procuring justice to be done to those whom 
we had, perhaps, injured by our too precipitate mea- 
sures, and of being connected with a government 
which promises to be efficient, permanent and honor- 
able, would, I am persuaded, produce the greatest 
unanimity on the subject. If you think these matters 
worthy the attention of tlie friends of the confederacy, 
be good enough to write by my brother, who will be 
the bearer of this. Our legislature will meet in Oc- 
tober, when these matters will be taken up seriously. 
Several gentlemen of my acquaintance, who are men 
of influence and will be members of the legislature, 



f6 LIFE OF NATHANIEL CHIPMAN. 

have requested me to procure all the information in 
my power on this subject. Anything which you may 
suggest to me in confidence will be sacredly attended 
to, of which Mr. Kelley, who writes by the same op- 
portunity, will give you the fullest assurance. 
I am, with great respect, 

Your obedient, humble servant, 

Nathaniel Chipman. 

Mr. Hamilton. 

alexander hamilton to nathaniel chipman. 

Poughkeepsie, July 22, 1788. 

Sir — Your brother delivered me your letter of the 
15th inst. which I received with pleasure, as the basis 
of a correspondence that may be productive of pubhc 
good. 
^ The accession of Vermont to the confederacy is 
doubtless an object of great importance to the whole ; 
and it appears to me that this is the favorable mo- 
ment for effecting it upon the best terms for all 
concerned. Besides more general reasons, there are 
circumstances of tlie moment which will forward a 
proper arrangement. One of the first subjects of 
deliberation with the new congress will be the inde- 
pendence of Kentucky, for which the southern states 
will be anxious. The northern will be glad to find 
a counterpoise in Vermont. These mutual interests 
and inclinations will facilitate a proper result. 

I see nothing that can stand in your way but the 
interfering claims under grants of New York. As 
to taxation, the natural operation of the new system 
will place you exactly where you might wish to be. 



LIFE OF NATHANIEL CHIPMAN. 77 

The public debt, as far as it can prudently be pro- 
vided for, will be by the western lands, and the ap- 
propriation of some general fund. There will be no 
distribution of it to particular parts of the community. 
The fund will be sought for in indirect taxation ; as, 
for a number of years, and except in time of war, 
direct taxes will be an impolitic measure. Hence, 
as you can have no objection to your proportion 
of contribution as consumers, you can fear nothing 
for the article of taxation. 

I readily conceive, that it will be scarcely practica- 
ble for you to come into the union, unless you are 
secured from the claims under New York grants. 
Upon the whole, therefore, I think it will be expe- 
dient for you, as early as possible, to ratify the con- 
stitution, upon condition that congress shall provide 
for the extino-uishment of all existintr claims to land 
under grants of the State of New York, which may 
interfere with claims under the State of Vermont. 

You will do well to conform your boundary to 
that heretofore marked out by congress, otherwise 
insuperable difficulties would be likely to arise with 
this state. I should think it altogether unadvisable 
to annex any other condition to your ratification. 
For there is scarcely any of the amendments pro- 
posed that will not have a party opposed to it ; and 
there are several that will meet with a verv stronix 
opposition ; and it would therefore be highly inex- 
pedient for you to embarrass your main object by 
any collateral difficulties. As I write in convention, 
I have it not in my power to enlarge. 

You will perceive my general ideas on the suliject. 

10 



78 LIFE OF NATHANIEL CHIPMAN. 

I will only add, that it will be wise to lay as little 
impediment as possible in the way of your reception 
into the union. 

I am, with much esteem, sir, 

Your obedient, humble servant, 

A. Hamilton. 

Mr. Chipman. 

alexander hamilton to nathaniel chipman. 

Sir, — Your favor of the sixth of September has 
been duly handed to me, and I receive great pleasure 
from the hopes you appear to entertain of a favor- 
able turn of affairs in Vermont in regard to the new 
government. It is certainly an object of mutual 
importance to yourselves and to the union, and well 
deserves the best endeavors of every discerning and 
good man. 

I observe with satisfaction your opinion that Ver- 
mont will not make a point of introducing amend- 
ments, (I mean as a condition of their accession.) 
That ground would be the most hazardous which she 
could venture upon, as it is very probable that such 
amendments as might be popular, with you, would 
be deemed inadmissible by the friends of the system, 
who will doubtless be the most influential persons 
in the national councils, and who would rather submit 
to the inconvenience of your being out of the union 
till circumstances should alter, than consent to any- 
thing that might impair the energy of the govern- 
ment. 

The article of taxation is, above all, the most 
delicate thing to meddle with, for a plenary power 



LIFE OF NATHANIEL CHIPMAN. 79 

in that respect must ever be considered as the vital 
principle of government; no abridgment or consti- 
tutional suspension of that power can ever, upon 
mature consideration, be countenanced by the intel- 
ligent friends of an effective national government. 
You must, as I remarked in my former letter, rely 
upon the natural course of things, which, I am satis- 
fied, will exempt you, in ordinary times, from direct 
taxation, on account of the difficulty of exercising 
it in so extensive a country, so peculiarly situated, 
with advantaije to the revenue, or satisfaction to the 
people. Though this difficulty will be gradually 
diminished, from various causes, a considerable time 
must first elapse ; and, in the interim, you will have 
nothing to apprehend on this score. 

As far as indirect taxation is concerned, it will be 
impossible to exempt you from sharing in the burthen, 
nor can it be desired by your citizens. 1 repeat 
these ideas to impress you the more strongly with my 
sense of the danger of touching this cord, and of the 
impolicy of perplexffig the main object with any such 
collateral experiments ; while I am glad to perceive 
that you do not think that your people will be tena- 
cious on the point. 

It will be useless for you to have any view in your 
act to the present congress ; they can, of course, do 
nothing in the matter. All you will have to do will 
be to pass an act of accession to the new constitu- 
tion, on the conditions upon which you mean to rely. 
It will then be for the new government, when met, 
to declare whether you can be received on your 
terms or not. 



80 LIFE OF NATHANIEL CHIPMAN. 

I am sorry to find that the affair of the boundary 
is Hkely to create some embarrassment. Men's minds 
everywhere out of your state, are made up upon, and 
reconciled to that which has been dehneated by con- 
gress. Any departure from it must beget new dis- 
cussions, in which all the passions will have their 
usual scope, and may occasion greater impediments 
than the real importance of the thing would justify. 
If, however, the further claim you state, cannot be 
gotten over, with you, I would still wish to see the 
experiment made, though with this clog ; because I 
have it very much at heart that you should become a 
member of the confederacy. It is, however, not to 
be inferred that the same disposition will actuate 
every body. In this state the pride of certain indi- 
viduals has too long triumphed over the public inter- 
est, and in several of the southern states a jealousy of 
northern influence will prevent any great zeal for 
increasing in the national councils the number of 
northern voters. I mention these circumstances, 
(though I dare say they will hav^ occurred to you,) 
to show you the necessity of moderation and cau- 
tion on your part, and the error of any sanguine cal- 
culation for a disposition to receive you at any rate. 
A supposition of this nature might lead to fatal mis- 
takes. In the event of an extension of your boun- 
dary by another congressional will, would it be im- 
practicable for you to have commissioners appointed 
to adjust any difference which might arise ? I pre- 
sume the principal object with you in the extension of 
your boundary, would be to cover some private inter- 
ests. This might be matter of" negotiation. There is 



LIFE OF NATHANIEL CHIPMAN. 81 

one thing which I think it proper to mention to you, 
about which I have some doubts, that is, whether a 
legislative accession would be deemed vahd. It is 
the policy of the system to lay its foundation on the 
immediate consent of the people. You will best 
judge how far it is safe or practicable to have re- 
course to a convention. Whatever you do, no time 
ought to be lost. The present moment is undoubt- 
edly critically favorable. Let it by all means be im- 
proved. I remain, with esteem, sir. 

Your obedient and humble servant, 

A. Hamilton. 

The author of the Life of Hamilton states that there 
is no date to my brother's letters ; indeed, from the ra- 
pidity with which he wrote, and the pressure of his 
engagements, this omission is not an infrequent oc- 
currence. 

The foregoing correspondence prepared the way 
for a settlement of the controversy with New York. 
In the winter following, Mr. Hamilton and Mr. Chip- 
man had an interview at Albany, when they took a 
view of the subject somewhat diflerent from their 
views, which appear in the foregoing correspond- 
ence, and agreed on a mode of settling the contro- 
versy, which was afterwards adopted by the two 
states. The legislature of New York, on the 15th 
day of .July, 1789, passed an act appointing Robert 
Yates, John Lansing, Gulian Verplanck, Simeon De 
Witt, Egbert Benson and Melancthon Smith, com- 
missioners, with full powers to acknowledge the sove- 
reignty of Vermont, and to adjust all matters of con- 



82 LIFE OF NATHANIEL CHIPMAN. 

troversy between the two states. And on the 23d of 
October following, the legislature of Vermont passed 
an act, appointing Isaac Tickenor, Stephen R. Brad- 
ley, Nathaniel Chipman, Elijah Paine, Ira Allen, Ste- 
phen Jacob and Israel Smith, commissioners, on the 
part of Vermont, to treat with those of New York, and 
to remove all obstructions to the admission of Vermont 
into the federal union. The commissioners of the 
two states met and adjusted all matters of controversy 
between them ; and on the 7th day of October, 1790, 
the commissioners, on the part of New York, de- 
clared the consent of the legislature of that state 
that the State of Vermont be admitted into the union 
of the United States of America. And that imme- 
diately on such admission, all claims of jurisdiction 
by the State of New York, within the State of Ver- 
mont shall cease, &c. It was further agreed and de- 
clared, that if the legislature of the State of Ver- 
mont should, on or before the 1st day of January, 
1792, declare that on or before the 1st day of June, 
1794, the State of Vermont would pay to the State of 
New York the sum of thirty thousand dollars, imme- 
diately from such declaration by the legislature of 
Vermont, all rights and titles to lands within the State 
of Vermont, under grants from the government of the 
Colony of New York, or from the State of New York 
should cease, those excepted which were made in 
confirmation of the New Hampshire grants. The 
legislature of the State of Vermont raised the sum of 
thirty thousand dollars, by a general land tax, and 
paid it to the State of New York within the time lim- 
ited for the payment. 



CHAPTER V. 

Convention called, by which Vermont acceded to the Union — Speech of 
Nathaniel Cliipman in the Convention — Admission of Vermont to the 
Union. 

The controversy with New York having been thus 
adjusted, the legislature of Vermont called a conven- 
tion to decide the question, whether Vermont should 
accede to the union. This convention met at Ben- 
nington on the 6th day of January, 1791 ; Nathaniel 
Chipman was a member of the convention, and de- 
livered the following speech, urging the accession of 
Vermont to the union. 

Mr. President, — The subject on which we are 
now called to deliberate is a subject of great mo- 
ment, and is attended with many weighty considera- 
tions. I shall waive at present the particular circum- 
stances in which we may be supposed to stand with 
the United States, on account of the claims of New 
York, and the late compromise between Vermont 
and that state. I shall first make a few observations 
on our local and relative situation as a state, and the 
probable consequences that would attend the event 
either of our continuing independent, or of our ac- 
ceding to the Union. I will then briefly remark on 
the principles and tendency of tlie federal constitu- 
tion. 



84 LIFE OF NATHANIEL CHIFMAN. 

In viewing our situation, the first thing that strikes 
the mind is the Hmited extent of our territory, inade- 
quate to support the dignity or defend the rights of 
an independent sovereignty, and the fortune that 
usually attends such petty sovereignties. 

The division of an extensive country into small 
independent sovereignties greatly retards civil im- 
provement. This was formerly the case in Europe ; 
and the consequence was, a long continuance in 
savage, and almost brutal manners. It has been 
found that, where, through an extensive territory, the 
smaller sovereignties have united under one general 
government, civilization has proceeded more rapidly, 
and the kindly affections have much sooner gained 
the ascendency, than where the country still con- 
tinued under numerous neighboring governments. 
The reason why the one state is more favorable to 
civilization than the other, is founded in the consti- 
tution of human nature. Among small, independent 
states, as among independent individuals, without a 
common judge, the weak will be jealous of the 
strong, and will endeavor, by art and cunning, to 
supply the want of power. The strong will be ready 
to decide everything by force, according to their 
present interest. Hence follow a total want of 
national faith, recriminations, animosities, and open 
violence, under the idea of reprisals ; and foreigner 
becomes but another name for an enemy. In this 
situation, the minds of men are kept in a constant 
state of irritation. Their turbulent spirits ill brook 
the restraint of laws. The passion of revenge, 
which, in proportion to the weakness of the govern- 



LIFE OF NATHANIEL CHIPMAN. 85 

ment, becomes necessary for the protection of the 
individual, is soon intlanied to a degree of enthu- 
siasm. Common danger alone, and that imminently 
impending, can suspend its baneful operation among 
the members of the same society ; — a situation fit 
only for savages, and in this situation savages have 
ever existed. But, in an extensive government, 
national prejudices are, in a great measure, sup- 
pressed. Hostilities are removed to a distance ; pri- 
vate injuries are redressed by a common judge. The 
passion of revenge, no longer necessary for the pro- 
tection of the individual, is suspended. The people 
no longer behold an enemy in the inhabitants of each 
neighboring district. They find all members of one 
great family, connected by all the ties of interest, of 
country, affinity, and blood. Thus are the social 
feelings gratified, and the kindly affections expanded 
and inviojorated. 

Vermont, continuing independent, would not be 
liable to all the evils which I have enumerated, in 
their full extent; but, as a small state, she will be 
liable to many and great inconveniences. In the 
vicinity, and almost encircled by the United States, 
now become great and powerful by means of an 
energetic system of government, our intercourse will 
be on very unequal, and frequently on very mortify- 
ing terms. Whenever our interests clash — and 
clash they will, at some times — with the interests 
of the union, it requires very little political sagacity 
to foresee that every sacrifice must be made on our 
part. When was it ever known that a great and 

powerful nation sacrificed, or even compromised her 

11 



86 LIFE OF NATHANIEL CHIPMAN. 

interest, in justice to a weak neighbor, who was un- 
able to make an effectual demand ? Nay, such is 
the nature of mankind, were they disposed to judge 
candidly in such circumstances, they are in a great 
measure incapable ; and who shall be a common 
judge ? We have formerly experienced the disposi- 
tion of neighboring powers, whose interests were 
adverse to our own, and well know the conse- 
quences; — extravagant, as we deemed them, and 
unjustifiable claims, on their part ; animosities, fac- 
tions, and even bloodshed, among ourselves. 

Our vicinity to an extensive province of the British 
empire is a circumstance worthy of consideration. 
There is not an immediate prospect of war between 
the United States of America and Great Britain ; 
yet, from their mutual recriminations in respect to 
the observance of the late treaty, and the retention 
of the frontier posts in the hands of the British, 
contrary to express stipulation, such an event, at 
some future day, is not improbable. Should that 
happen, Vermont would be in a situation much to 
be regretted. Our local situation with the United 
States, our present connection with many of their 
inhabitants, connected by all the ties of blood and 
kindred affection, would forbid an alliance with Great 
Britain. As allies of the United States, we should 
experience from the British all the resentment of an 
enemy whom, by our alliance, we had voluntarily 
made such, and to whose ravages, from our frontier 
situation, we must be continually exposed. And 
should we find in the United States that quick sense 
of the injuries we should sufier ? Will they fly to 



LIFE OF NATHANIEL CHIPMAN. 87 

our defence with the same alacritv, with the same 
national spirit, as they would defend themselves when 
attacked in one of their own memhcrs ? Will they 
equally attend to our interest as to their own in the 
settlement of a peace, or in adjusting the expendi- 
tures of the war? The supposition is highly chi- 
merical ; nor less so the idea that, by observing a 
neutral conduct, we may enjoy all the blessings of 
peace, while the flames of war rage on every side. 
Our little country would become a rendezvous and 
thoroughfare for the spies of both nations. Our 
citizens would, by both parties, in many instances, 
be drawn into an infamous correspondence of that 
kind. Every act of friendship, or even of common 
courtesy, done to one party, would excite the jealousy 
of the other. Their armies, to whom we should not 
be in a condition to deny a passage, would, on every 
the least pretext of necessity, think themselves justi- 
fied in seizing our property for their support. In a 
word, we should be equally used, equally distressed, 
insulted, and plundered by both. 

Again, we may take another view of the subject, 
as it relates to the promotion of learning and liberal 
science. Confined to the narrow bounds of Vermont, 
genius, for want of great occasions and great objects 
to expand the powers of the mind, will languish in 
obscurity. The spirit of learning, from which states 
and kingdoms derive more solid glory than from all 
heroic achievements, and by which individuals, raised 
above the common lot of humanity, are enabled to 
contribute to the happiness of millions in distant 
parts of the globe, will be contracted, and busy itself 



88 LIFE OF NATHANIEL CHIPMAN. 

only in small scenes, commensurate with the exigen- 
cies of the state, and the narrow limits of our govern- 
ment. In proportion as the views are more confined, 
more limited, and more local, the more is the mind 
contracted by local prejudices. But, received into 
the bosom of the union, we become brethren and 
fellow-citizens with more than three millions of peo- 
ple. Instead of being confined to the narrow limits 
of Vermont, we become citizens of an extensive 
empire. Here is a scene opened that will expand 
the social feelings ; the necessity and facility of mu- 
tual intercourse will tend to eradicate local preju- 
dices ; the channels of information will become wide 
and far extended ; the spirit of learning will be called 
forth by every motive of interest and laudable am- 
bition, and exalted by the magnitude of the objects 
presented. Genius will soar to the heights of science. 
In a word, independent, we might ever continue 
httle, and, I had almost said, contemptible ; united, 
we become great by the reflected greatness of the 
empire with which we unite ; our general interests 
will be the same as those of the union ; and, repre- 
sented in the national councils, our local interests 
will have their due weight. From the encourage- 
ment given to arts and manufactures, as an inland 
country, we shall reap more than a proportional ad- 
vantage ; and, in case of a war, an attack upon us 
will be felt through every member of the union. 
National safety, national pride, and national resent- 
ment, — not the petulance of a tribe, but great as 
the nation oflended, — will all conspire in our de- 
fence. 



LIFE OF NATHANIEL CHIPMAN. 89 

These observations relate only to the expediency 
of joining the union in our present situation, and 
to the removal of such objections as may arise to 
the measure, antecedent to a discussion of the con- 
stitution under consideration. I shall not now enter 
into a minute examination of the federal constitution, 
but only observe upon some of its leading features, 
the principal end in view in its formation, and how 
far it is calculated to attain that end. 

The great end in view, and which has heretofore 
been the grand desideratum in federal polities, is to 
bring all the states of the confederacy to act in 
concert, in those measures which have an imme- 
diate relation to the good of the whole. There are 
three principal methods by which this has been at- 
tempted : 

1. The first, because the most ancient, is by a 
council, empowered to legislate upon the several 
states composing the confederacy. Of this kind 
were the council of the Amphictyons, at the head 
of the confederated states of ancient Greece. In 
this case, as none but states can refuse to obey, a 
delinquent can be nothing less than a whole state, 
already provided with arms and councils for a for- 
midable opposition. To enforce the decrees of the 
council, which we may call the laws of the union, 
it is necessary to draw out the forces of the comply- 
ing states, and to compel obedience by dint of arms. 
The history of ancient Greece, for many years, is 
infamous for a succession of such wars. Such was 
the famous Peloponnesian war, which raged with 
almost unabated fury near thirty years. Such ever 



90 LIFE OF NATHANIEL CHIPMAN. 

has been, and such ever will be, the effect of this 
kind of government, — if it may be called a govern- 
ment, — unless, like the late congress of the United 
States of America, they suffer their laws and ordi- 
nances to be violated with impunity. And, in this 
case, the consequence will be the same ; the govern- 
ment will soon reach the lowest point of degradation, 
and crumble on the brink of evanescence. 

2. The second mode is by a council empowered only 
to propose measures to the confederated states, sub- 
ject to the ratification of the states severally before 
they can have the force of laws. The United Neth- 
erlands furnish us with an instance of this second 
form. The states-general are the grand council of 
the confederacy. This council, although pompously 
styled their High-Mightinesses, have, in matters of 
national concern, only a power to propose. The 
several states have reserved to themselves the right of 
ratification. No law can be constitutionally binding 
until it has received the ratification of each indi- 
vidual state. The veto of a single state, in some 
instances little superior in point of territory to the 
town of Bennington, may disconcert, and actually has 
disconcerted the wisest measures. Frequently, on 
great emergencies, such is the delay, before all the 
states can be brought to agree, that the opportunity 
of actincr is forever lost. This has induced the states- 
general, aided by the stadtholder, the hereditary Prince 
of Orange, who administers the republic, and whose 
power and influence are very great, frequently to act 
without, and even contrary to the authority of the 
smaller states. Such a disregard of the constitu- 



LIFE OF NATHANIEL CHIPMAN. 91 

tional principles of their union, has, even among that 
plodding, phlegmatic people, produced violent con- 
cussions, and some within our own memory. 

3. The third form is by a council, or federal legis- 
lature, empowered in all instances that concern the 
confederacy at large, to legislate on the citizens of 
the several states, and to carry their laws into execu- 
tion by their own officers. Of this third form we 
have an instance in the present constitution of the 
United States of America. In this case the national 
legislature, in all matters that concern the general 
interests of the confederacy empowered, and limited 
by the constitution, legislate, not upon the states col- 
lectively, but upon the citizens of the union. No 
ratification is necessary further than their own act. 
The constitution, and all authoritative acts under the 
constitution, are the supreme law of the land. To 
prevent diflerent constructions that might arise from 
diflerent opinions in several independent tribunals, 
under the influence of local interest or prejudice, the 
judiciary, for all cases arising under the constitution 
and laws of the union hold their offices by appoint- 
ment of the supreme power of the confederacy, and 
are amenable only to that power, and their decisions 
are carried into effect by ministerial officers, appoint- 
ed by the same authority. While the national legis- 
lature are vested with supreme power in all matters 
that relate to the general welfare of the union ; the 
states legislatures, within their several jurisdictions, 
retain as sovereign all those powers, the due adminis- 
tration of which, most endears government to man- 
kind. To them it belongs, among their own citizens, 



92 LIFE OF NATHANIEL CHIPMAN. 

to regulate the mode, and to secure the acquisition of 
property ; to redress injuries ; to animadvert upon 
morals ; and to restrain and punish those crimes, 
wliich attack private property, violate personal secu- 
rity, and disturb the peace of society. 

The senators of the United States, appointed by 
the several state legislatures, and from time to time 
amenable to them, may be considered as guardians of 
the rights of their respective states against all en- 
croachments of the national government. The rep- 
resentatives in congress, elected by the people, and 
dependent on them through the means of biennial 
elections, are bound by all the ties of interest and 
affection, to v^atch over the rights of individuals and 
the rights of their several states, w^ith which their 
electors are more immediately connected. The pow- 
er of appointing electors for the choice of the presi- 
dent and vice president, gives the states legislatures a 
suthcient check on the executive of the federal gov- 
ernment. It is true, this form of federal government 
is almost a phenomenon in the political ^vorld. Hard- 
ly a shadow of such powers, as relative to their execu- 
tion, is to be found in the history of ancient or mod- 
ern politics. Its novelty, however, in this age of 
improvement, no less in the science of politics than 
in other sciences, can hardly be made a serious ob- 
jection ; still it is acknowledged, that however beauti- 
ful in theory, or as delineated on paper, its efficiency 
in point of practice might still be considered as prob- 
lematical, had we not seen it evinced by actual ex- 
periment. The -idea alone of the efficiency of the 
federal government, at the instant of its organization. 



LIFE OF NATHANIEL CHIPMAN. 93 

added strength to the states governments, and put 
an end to those turbulent commotions, which made 
some of them tremble for their political existence ; 
nor has this state reaped an inconsiderable advantage 
from the suppression of that contagious spirit of fac- 
tion which existed in some of the neighboring states. 
Two years have not yet elapsed since the commence- 
ment of this administration. They have already pro- 
vided for funding the national debt ; they have in a 
great measure restored public credit, which, from 
the weakness of the former government, they found 
almost in a state of desperation. They have enriched 
the nation with a very productive revenue. The wis- 
dom, justice, and equality of their laws and regula- 
tions are fully evinced by a prompt and almost uni- 
versal observance. In very few instances have their 
courts been called to animadvert upon a violation of 
their laws. It may be said that this arises from the 
confidence of the people in the present members of 
the government. That undoubtedly has its influence. 
But a people free, jealous and discerning, as the 
Americans are, do not suffer measures to pass unex- 
amined. They never long give to any men, or set 
of men, an unmerited confidence. It is probable 
that the national council will long and deservedly re- 
tain the confidence of the people. The people, when 
called to choose rulers and legislators for an exten- 
sive empire, of which themselves are a constituent 
part, experience a dilation of mind ; they rise above 
vulgar and local prejudices, and confer their suffrages 
on men whose abilities and integrity are equal to the 
task of empire. 

12 



94 LIFE OF NATHANIEL CHIPMAN. 

One important consideration ought not to be omit- 
ted. Tlie present constitution is still subject to 
amendments. Whatever shall be found dangerous, 
or impracticable, may be retrenched or corrected. 
That wisdom which formed it, aided and matured 
by experience, may carry it to a greater degree of 
perfection than anything that has yet been known 
in government. 

--^ have, sir, in the course of these observations, 
hinted at the disadvantages that will accrue to us, 
continuing independent. I have touched upon some 
of the advantages of an accession to the union. 
I have pointed out the leading principles of the 
constitution, and its probable and actual efficiency 
in strengthening the government of the several states, 
and in securing the tranquillity, happiness, and pros- 
perity of the union. The more minute investigation 
of the subject I leave to others. At the same time, 
I rest fully persuaded, that, when accurately exam- 
ined with that candor and impartiality which will 
doubtless mark the proceedings of this convention, 
every material objection to the constitution, or to the 
accession of the State of Vermont to the union, 
will be easily obviated or totally disappear. 

After a session of four days, the convention re- 
solved, yeas 105, nays 2, that application be made to 
congress for the admission of Vermont into the fed- 
eral union. And, on the 18th day of January, 
1791, the legislature, in order to carry into effect 
the foregoing resolution, appointed Nathaniel Chip- 
man and Lewis R. Morris to attend congress, and 



LIFE OF NATHANIEL CHIPMAN. 95 

negotiate for the admission of Vermont into the 
federal union. And, on the 4th day of March, 
1791, Vermont became one of the United States 
of America. ^' 



CHAPTER VI. 

Elected Chief Justice — Confirmation Charter under New York — Why 
they were not taken by the Settlers on the west Side of the Mountain 
— The Law in relation to those Charters settled by Judge Chipman — 
Appointed District Judge — Letters to General Schuyler and Governor 
Robinson — Sketches of the " Principles of Government" — Reports 
and Essays — Resigned his Office of District Judge — Appointed one 
of a Committee to revise the Statutes — Elected Chief Justice — His 
Character as a Politician. 

Nathaniel Chipman had, in October, 1789, been 
elected Chief Justice of the Supreme Court of the 
State, and continued in that office until October, 
1791, when he was appointed Judge of the Court 
of the United States for the District of Vermont. 

In the administration of justice in this state, pre- 
vious to the year 1791, the judges were greatly per- 
plexed with the confirmation charters under New 
York. To elucidate this subject, and make it clearly 
understood by the reader, it is necessary to advert 
to the times when these confirmation charters were 
issued. And the reader will not be displeased, if, in 
order to fill a chasm in our early history, I go farther 
than shall appear consistent with the leading design 
of this work. 

During the contest between the Governor of New 
Hampshire and the Governor of New York for the 



LIFE OF NATHANIEL CHIPMAN. 97 

jurisdiction of the territory now forming the State of 
Vermont, each claimed the right of granting the lands, 
and each treated the grants of the other as void. 
The Governor of New Hampshire first granted a 
great number of townships, and almost all the settle- 
ments made before the revolutionary war, on both 
sides of the mountain, were made under the New 
Hampshire title. The Governor of New York grant- 
ed a portion of the same lands in the counties of 
Bennington and Rutland, which had been previously 
granted by the Governor of New Hampshire, and 
settled under that title. The New York grantees 
commenced actions of ejectment against some of 
the settlers, and recovered judgments against them 
before the courts in Albany. The settlers made a 
successful resistance, defending their possessions by 
force. And, in October, 1772, a convention was 
holden at Manchester, by which it was decreed that 
no person should take a confirmation charter under 
New York. In the mean time, the settlers on the 
east side of the mountain, generally, surrendered 
their New Hampshire charters to the Governor of 
New York, took confirmation charters, and lived 
quietly under the laws of New York ; — two counties 
having been organized on Connecticut River by that 
government, — Cumberland at the south, and Glou- 
cester at the north. The inhabitants of these coun- 
ties, who had thus submitted to New York, were, 
by the inhabitants of Bennington county, considered 
as apostates, as base deserters of the common cause. 
And, when any sherifi' or other officer under New 
York had occasion to pass from the county of Cum- 



98 LIFE OF NATHANIEL CHIPMAN. 

berland or Gloucester, through Bennington county, to 
Albany, they were obliged to travel in such manner 
as to escape observation ; sometimes secreting them- 
selves in the woods by day, and travelling by night. 

Now, what was the cause of this very extraordinary 
state of things ? Why did the settlers in Bennington 
county, so near Albany City Hall, resist the power 
of New York, and successfully defend their posses- 
sions under their New Hampshire charters, while the 
settlers on Connecticut River, having the Green 
Mountains between them and Albany, submitted to 
the government of New York, surrendered their New 
Hampshire charters, and took confirmation grants 
from the governor of that colony ? If the reverse 
of this had taken place — if the settlers in Benning- 
ton county had submitted to New York, had surren- 
dered their New Hampshire charters, and taken con- 
firmation charters, and those on Connecticut River 
had made a successful resistance, — a bare statement 
of the fact would have furnished a satisfactory ex- 
planation. But, as the facts are, they require an 
explanation, which can be given, but not in as few 
words as I could wish. 

The sum demanded by the Governor of New 
York, for a confirmation charter of a township, was 
seventy pounds. New York currency. At that time, 
specie was the only circulating medium, and that 
extremely scarce. During the previous French wars, 
and several years after, the New England colonies 
had issued bills of credit, or, in the language of that 
period, banks of paper money ; and, as there was 
no fund provided for their redemption of the bills, 



LIFE OF NATHANIEL CHIPMAN. 99 

they became depreciated, and, of course, drove most 
of the specie out of the country. This paper money 
was called in, and withdrawn irom circulation, a few 
years before the commencement of the revolutionary 
war, leaving the country nearly destitute of a circu- 
lating medium ; by reason of which, the value of 
money was increased, and the prices of all species 
of property greatly depressed, — so much so, that, 
on the first of May, 1775, the average price of cows, 
passing at the appraisal of men, was forty shillings. 
This fact will enable any one to ascertain what has 
been the depreciation of money since that period. 
Yet, valuable and scarce as money then was, each 
individual proprietor could raise his proportion of the 
seventy pounds, New York currency, to obtain a 
confirmation charter, — it being little more than two 
dollars and fifty cents, — or to secure the title to a 
farm containing one hundred acres, less than one 
dollar. Although some individuals on the east side 
of the mountain had purchased a number of rights, 
yet no individual or company of individuals had 
purchased a number of townships. The proprietors 
were therefore able, in every case, to raise money 
to pay for a confirmation charter ; and no one will 
deny that they were wise in doing so. To have re- 
fused the payment of a sum so trifling, compared 
with the value of the land, to secure an unquestion- 
able title, would have been quite inexcusable. But 
why were not the settlers on the west side of the 
mountain equally wise ? why did they spend vastly 
greater sums in defending themselves against the 
New York claimants, and put at hazard their entire 



100 LIFE OF NATHANIEL CHIPMAN. 

property ? The answer is, it was wholly out of the 
power of the leading men to raise a sufficient sum 
of money to obtain confirmation grants of their 
lands. 

The Onion River Company, formed some years 
before the commencement of the revolutionary war, 
for the purchasing of lands in the Onion River 
country, — as the north-western part of the New 
Hampshire Grants was then called, — consisted of 
Ethan Allen, Heman Allen, Levi Allen, Zimri Allen, 
Ira Allen, and Remember Baker. They had pur- 
chased lands in the New Hampshire Grants to the 
amount of about four townships ; and this, it was 
understood at the time, had exhausted their funds. 
Ethan Allen was never possessed of much property. 
His views were elevated quite above the paltry busi- 
ness of acquiring it. Heman Allen commenced 
business as a country merchant, a few years before 
the revolutionary war, but never acquired much 
property. Levi Allen was a prodigal, and never 
possessed any property. Zimri and Ira Allen were 
young, and had never engaged in any business. 
Remember Baker was a mill-wright, — an energetic, 
enterprising man, — but could at no time have raised 
any considerable sum of money. It must therefore 
have been quite impossible for the Onion River 
Company to raise a sufficient sum of money to ob- 
tain confirmation charters of their lands. There 
was then no alternative but to rely on their New 
Hampshire title ; and, should that fail, to defend their 
possessions by force ; and they were heartily joined 
in this course by the whole body of the inhabitants 



LIFE OF iNATHANIEL CHIPMAN. 101 

of Bennington. A great portion of them had pur- 
chased their lands of Samuel Robinson, the first 
settler of the town. And, as Robinson was their 
voucher, it belonged to him to raise money to obtain 
a confirmation of their title ; and the large amount 
of the sum required must, with Robinson, have had 
all the weight of a most conclusive argument in favor 
of the New Hampshire title. 

Having thus taken their stand in opposition to 
New York, the leaders soon infused into the great 
body of the settlers their own spirit, which at once 
raised them above all paltry calculations of pounds, 
shillings and pence, and enabled them to achieve the 
independence of the state. The state having been 
thus organized by those who had been long combined 
in opposition to the New York title, on the ground 
that it was void in law, and who had also rendered 
it more utterly void by force, it could not be expected 
that the New York title would be in higher favor 
with the courts of Vermont than the New Hampshire 
title had been with the courts of New York. Accord- 
ingly, the Vermont judges, viewing the confirmation 
charters as the wages of apostacy, adjudged them to 
be utterly void to every intent and purpose. This 
did gross injustice to the grantees under these charters. 
But, during the time that Nathaniel Chipman was 
Chief Justice, in the year 1791, he settled the law 
in relation to these charters in such manner as to do 
equal justice to all concerned. In the language of 
an eminent jurist, who practised before the supreme 
court at the time, "Judge Chipman was the first 
among our judges, who rose so far above the prcju- 

13 



102 LIFE OF NATHANIEL CHIPMAN. 

dices of the times in Vermont, against the State of 
New York, as to give such effect to the confirmation 
charters, as effectually to secure the rights of the 
grantees under them, consistently with the rights of 
the New Hampshire grantees." (See D. Chipman's 
Reports, p. 56.) 

Ever watchful of the public interest, and ever 
ready to render all the aid in his power for the pro- 
motion of the general welfare, he wrote the following 
letters to his correspondents : — 

NATHANIEL CHIPMAN TO GENERAL PHILIP SCHUYLER. 

Rutland, January 25th, 1792. 

Sir, — When at Philadelphia last winter, we had 
some conversations on the subject of opening a canal 
from Lake Champlain to Hudson's River. I find the 
subject will probably employ the attention of your 
state legislature, at the present session. If the fol- 
lowing information, which I have been at some pains 
to collect, will be of any service in the course of that 
business, I flatter myself it will be a sufficient apology 
for my addressing you on the subject. 

It will be needless to enumerate the advantages 
that would, in such event accrue to the people in the 
northern parts of the State of New York. I shall, 
therefore, confine myself to Vermont. From this 
state the trade of three counties would flow to New 
York through that channel — Rutland, Addison, and 
Chittenden. This comprehends a tract of country 
one hundred and twenty miles in length, north and 
south, and averaging in breadth, east and west, from 
twenty to thirty miles. The county of Rutland, with 



LIFE OF NATHANIEL CHIPMAN. 103 

from eighty to one hundred and twenty miles of land- 
carriage to Lansingburg, trades almost solely with 
New York. From a pretty accurate account which 
I have collected, there have been manufactured and 
exported from this county, between the first of De- 
cember, 1790, and the first of December, 1791, three 
hundred tons of pot and pearl ashes. My accounts 
from the counties of Addison and Chittenden, the two 
northern counties on Lake Champlain, are not so ac^ 
curate ; but I am well assured that they exported 
during the same year, not less than two hundred tons. 
This last, from the great expense of transportation to 
the New York market, is mostly vended in the Pro- 
vince of Quebec. It is computed, that there was 
in these three counties, the last year, a surplus over 
and above the consumption of the inhabitants, of 
thirty thousand bushels of wheat. Yet such is the 
expense of transportation, that we gain very little by 
the surplus. The cash price has been estimated at 
from three shillings to three shillings and sixpence per 
bushel ; but there is not a ready market for it at that 
price. The price of wheat in the Quebec market is 
usually very low. Those whose trade is with that 
province are now purchasing it at three shillings. 
Those who trade to New York do not, in general, 
consider wheat an article in which they can make re- 
mittance. Were a water communication opened, as 
proposed, the Quebec trade, except for lumber, would 
be immediately deserted, and the whole would centre 
in New York. The reasons are so apparent that I 
need not suggest them. The facility of conveyance 
would enable the merchant to remit many articles, 



104 LIFE OF NATHANIEL CHIPMAN. 

which are now worthless, by reason of the expense 
of transportation, and to give a higher price for all. 
Merchants, too, would afford their goods, especially 
heavy articles, at a much lower price than they can 
at present. The annual saving in the price of salt 
alone would be very great. 

There are now in the county of Rutland fourteen 
forges, one furnace, and one slitting mill, and two 
furnaces in building, which will be in blast another 
season. There are four forges in the county of Ad- 
dison, and two in the county of Chittenden. In the 
county of Rutland are great quantities of iron ore, 
and also on the west side of Lake Champlain. Vast 
quantities of iron, would in a few years be transported 
on the proposed canal. 

There are, in this part of the country, numerous 
quarries of marble, some of them of a superior qual- 
ity. Machines may be easily erected for sawing it 
into slabs by water, and in that state, by means of a 
water communication, it might become an important 
article of commerce. 

But above all, agriculture will furnish the means of 
trade. The whole country, with few exceptions, will 
produce good wheat. The wheat grown on the 
marie lands about Lake Champlain, is of a quality, 
perhaps inferior to none raised in any part of the 
State of New York. Add to this, that there are few 
better grazing countries. Take the whole extent of 
this territory, there is not more than one third part of 
it under cultivation ; but the population is rapidly 
increasing. The number of inhabitants in these three 
counties, on taking the last census, was thirty thou- 



LIFE OF NATHANIEL CHIPMAN. 105 

sand. Were a canal now opened, as proposed, I 
think, taking into view, the extent and fertility of 
the land on both sides of the lake, with the rapid 
increase of population, it will not be extravagant to 
suppose, that through this channel alone, New York, 
in less than ten years, would command the trade of 
one hundred thousand people. It is certainly an ob- 
ject worthy of public attention, and I hope it will 
meet with the encouragement it deserves. Be kind 
enough to pardon me the trouble of this letter. 
And believe me to be, with great respect 
And sincere regard, your obedient servant, 

Nathaniel Chipman. 

NATHANIEL CHirMAN TO MOSES ROBINSON, SENATOR IN CONGRESS. 

Rutland, February, 12, 1792. 

Dear Sir, — Before the receipt of your favor of 
the 23d of January, I had been informed of the fate of 
the bill apportioning representatives, &c. Peace be 
to its manes. I must confess I did not at first advert 
to the inequality which the smaller states suffered by 
means of the fractional parts ; but I soon found, while 
the ratio of Virginia was one representative to 30,000 
and some odd hundreds, that of Delaware was one to 
59,000 ; of Vermont, one to 42,550. I have seen 
Mr. Ames's speech on the subject; he has treated it 
in a masterly manner. I could not feel the force of 
those arguments, which went upon the convenience 
and inconvenience of number in the house, and a 
proportion between the house and the senate. The 
principle of the federal government is virtue. By 
which, I understand a sentiment of attachment to the 



106 LIFE OF NATHANIEL CHIPMAN* 

government and laws. This dictates a spirit of mod- 
eration ; a facility in accommodating particular to 
general interests ; reciprocally to accommodate one 
with the least possible injury to the other. That 
ratio is the most equitable, and can alone support the 
government without violence, which represents most 
equally, both in number and quantity, all those pas- 
sions, sentiments and interests, that have national 
consequences. A legislature formed upon the prin- 
ciple of equal representation, will rarely violate the 
public sentiment, or sacrifice the national interest. 
Dehberation is of more consequence than the saving 
of a very considerable expense. In a government 
like this, which derives its whole energy from public 
sentiment, lengthy discussions on important national 
matters, are indispensably necessary. The people 
attentively peruse, and take part in the debates; 
they become acquainted with the several interests to 
be accommodated ; they foresee the result, and are 
ready to adopt the measures of government, as soon 
as they are brought to a decision. I am very ap- 
prehensive that the different opinions, which at pre- 
sent so warmly agitate the people upon the Indian 
war, is owing in some measure to the secrecy with 
which that subject has been discussed in congress. 
Not that I censure the manner of proceeding ; I can 
suppose it necessary even at the risk of this conse- 
quence. I do not suppose the whole is to be attri- 
buted to this circumstance, but, I believe, in want of 
that general information that would have been derived 
from a public discussion, the public mind is much 
more powerfully agitated by the two unsucessful ex- 
peditions. 



LIFE OF NATHANIEL CHIPMAN. 107 

As to the justice of the war on the part of the 
United States, of which so much has heen said, I am 
wholly incompetent to decide. I do not know how 
my opinion will agree with yours, but I think, in 
whatever light it may place former measures, the jus- 
tice of the war in its first rise cannot be made a ques- 
tion in deciding what measures ought now to be 
pursued. Peace, certainly, ought to be our darling 
object. But the annals of history afford not a single 
instance of a peace made or maintained with savage 
nations flushed with victory, upon any terms of reci- 
procity. They will never be sincerely desirous of 
peace until they have felt the superiority of our arms. 
To act only on the defensive, could never have the 
desired effect. Such is the extent of our frontiers, 
and such it would be if contracted within any given 
limits that could rationally be proposed, that we can 
hardly conceive of an army sufficient for a complete 
defence, or a sum equal to the expenditures. A much 
less army, well appointed, and well instructed in the 
disciphne necessary for an Indian war, would be suffi- 
cient to extirpate the whole race of Indians, from the 
six nations to the Mississippi, and from the Ohio to 
the northern lakes. God forbid such an idea should 
ever be realized. It is infinitely more to the honor of 
the United States, to the honor of humanity, to en- 
deavor to cultivate a secure peace with that people, 
and to lead them by slow degrees, as they will bear 
it to a rehsh for civil improvement. It is certain, for 
a long time we can maintain with them only a pre- 
carious peace, and that only by being ready in arms 
on our part. 



108 LIFE OF NATHANIEL CHIFMAN. 

There will be found villains on the borders, fugi- 
tives from justice in the states, who, upon the least 
pique, or from motives of gain, will kill an Indian for 
his pack, with as httle remorse as they would kill a 
beaver for his skin. Such, generally, are the man- 
ners and feelings of savages that they resent an injury 
done to an individual of a tribe, as an injury done to 
the whole tribe ; and an injury done by an individual 
of another tribe or nation, is resented against the 
whole tribe or nation. The impetuosity of their tem- 
pers, when inflamed by a sense of injury, renders 
them incapable of the delay of mutual discussion and 
amicable satisfaction. Indeed, this sentiment pre- 
vails not a little among those nations who think them- 
selves highly civilized. This will be a source of hos- 
tilities not to be wholly prevented by the utmost vigi- 
lance and circumspection of government. 

Everything goes on peaceably and cleverly in V^er- 
mont. The improvement of inland navigation is at 
present the most interesting topic of conversation. 
The legislature of Massachusetts have granted to 
Colonel Worthington and others the privilege of lock- 
ing the falls on Connecticut River in that state. The 
legislature of New York, it seems, are determined 
on opening a water communication between the wa- 
ters of Champlain and Hudson River. These are 
objects highly interesting to this state. 

Believe me, with esteem. 

Your most obedient servant, 

Nathaniel Chipman. 

In the year 1793, he published a work entitled. 



LIFE OF NATHANIEL CHIPMAN. 109 

" Sketches of the Principles of Government," and 
the same year he published a small volume, entitled, 
" Reports and Dissertations," containing reports of a 
number of cases decided while he was Chief Justice 
of the Supreme Court, with dissertations on the stat- 
ute adopting the common law of England,^ the statute 
of offsets, on negotiable notes, and on the statute of 
conveyances. Soon after this he became dissatisfied 
with the office of district judge. There was very 
little business in the district or circuit court, and be- 
ing anxious for more active employment, he resigned 
his office of district judge, and returned to his prac- 
tice at the bar, in which he continued until October, 
1796, when he was again elected Chief Justice of the 
Supreme Court. 

The same year, he was appointed a member of a 
committee to revise our code of statute laws ; and 
it was well known, that almost all the acts known as 
the revised laws of 1797 were written by him; and, 
being in the congressional library at Washington, 
with the statute laws of the other states, they have 
attracted the attention of jurists, who have not hesi- 
tated to say, that they find no other code of statute 
laws written in a style so distinguished for simplicity, 
perspicuity, and technical accuracy. 

As a politician, he was of the school of Washington 
and Hamilton, who established the national govern- 
ment against a powerful opposition from the anti- 
federalists. He was a prominent member of the 
federal party, and, because influential, the more ex- 

' This dissertation will be found in the Appendix, No. 1. 
11 



no LIFE OF NATHANIEL CHIPMAN. 

posed to have his character assailed by the opposing 
anti-federal party. Yet they made no specific charges 
against him, but confined themselves to such vague 
abuse as is comprised in the epithets of aristocrat, 
monarchist, British tory. Nathaniel Chipman an aris- 
tocrat ! This must sound very oddly to those who 
have read his work on Government, and to all those 
who have witnessed his plain, republican manners, 
habits, and sentiments, through a long life. 

The federalists did not fail to calumniate the dem- 
ocratic party, — the anti-federalists having, at the 
commencement of the French revolution, assumed the 
name of democrats, — but charged them indiscrimi- 
nately with being anarchists and French Jacobins. 
How startling it would be at this day, should any one 
assert that James Madison, always in the front rank 
of conservatives, was an anarchist! Such is the 
course of all political parties, and such the result. 
Each party struggles to retain its power, or to rise 
into power, by depressing its opponents. And hence, 
as in the instances above stated, individuals frequently 
emerge from the clouds of calumny, in which they 
had been enveloped by party interest grown into 
party malignity, and appear directly the reverse of 
what they had been represented. 

Neither as a politician, nor as a statesman, was 
the subject of this memoir one of those who are 
aptly termed difficult men, but was always disposed 
to compromise by yielding all minor points, — ever 
considering it to be his duty to support the best 
practicable measures. He seemed to be entirely 
free from that egotistical obstinacy, which is so inju- 



LIFE OF NATHANIEL CHIPMAN. Ill 

rioiis in public, and so troublesome in private life. 
But, whenever any measure was proposed which he 
deemed a departure from settled principles, he seemed 
to be instinctively opposed to it; especially if he 
deemed it a violation of constitutional principles, or 
as establishing a precedent which might prove inju- 
rious to the government. In this light he viewed the 
proposition for the Hartford Convention. When, 
therefore, in October, 1814, he received information, 
at his residence in Tinmouth, that a proposition 
would be made in the legislature, then in session at 
Montpelier, to appoint delegates to that convention, 
he immediately set out for Montpelier, arrived there 
in season, and, by his influence, the measure was 
suppressed. 

We have seen that he took an active part in the 
revolutionary war, and that, after he left the army, 
he became an actor in our long and doubtful struirijle 
for independence as a state. And it appears, that 
his interest in the public welfare, his attachment to 
our free institutions, and his confidence in the suc- 
cessful result of our experiment in free government, 
were but increased by the obstacles which appeared 
in the way, and by his unremitted exertions to remove 
them. As a mother becomes more strongly attached 
to a helpless child, which requires all her care, than 
to a healthy one, which requires little attention, so 
our patriot fathers became more strongly attached 
to our free institutions, by reason of the care they 
were compelled to bestow upon them in their infancy, 
to prevent their dissolution. 

As a statesman, he was practical rather than tlico- 



112 LIFE OF NATHANIEL CHIFMAN. 

retical. He seemed to be aware that we can in 
everything conceive of a perfection which we can 
never attain. And, while he observed others, in their 
struggles to reach the highest conceivable perfection 
at once, go beyond what is practicable and become 
visionaries, he was content to take experience for his 
guide, and advance slowly, but steadily, to reach the 
utmost attainable perfection. His mind was eminent- 
ly logical, but his reasoning was principally by anal- 
ogy and induction. This gave his mind a wider 
range, rendered it more discriminating, and gave it 
a more practical cast.^ 

* The reader will find in the Appendix, No. VIII., a statement of some 
of Judge Chipman's political opinions, in a letter to Alexander Hamilton, 
occasioned by certain proceedings of the Democratic Society of the 
county of Chittenden. 



CHAPTER VII. 

Elected Senator — His Speech in the Senate on a Resolution concerning 
a breach of its Privileges — Letter expressing his Views of the French 
Revolution — His Speech on the Judiciary Act. 

In October, 1797, he was elected a senator in con- 
gress for six years from the 4th of March, 1798. In 
that body he was distinguished for his talents, his 
learning and his independence. On the 19th of 
March he delivered the following speech in the sen- 
ate, on a resolution to bring the editor of the Aurora 
before the senate, to answer for a breach of the privi- 
leges of that body, in publishing certain virulent para- 
graphs respecting its proceedings in certain matters 
then under the consideration of the senate. 

Mr. President, — The honorable gentleman^ last 
up has dwelt on an objection, which has been fre- 
quently urged with peculiar emphasis in the course of 
this debate, " that if the senate take upon themselves 
to vindicate the privileges of their body, they must 
of necessity be their own judges ; that this is unfit- 
ting, that it is against natural justice, and ought never 
to be admitted." 

But the position is not founded in truth. When- 
ever the right of self-defence, of self-protection, ex- 

' Mr. Marohall, of Kentucky. 



114 LIFE OF NATHANIEL CHIPMAN. 

ists in any individual, or society of individuals, the 
right of judging each in his own cause equally exists. 
It is admitted from necessity in certain instances. It 
is in those instances strictly natural, and comports 
with natural justice. It is, indeed, the great business 
of government to diminish this necessity to individu- 
als of exercising this right, by a provision of laws and 
tribunals, to which all may resort for a redress of 
injuries. But no provision can extend to all cases. 
The right of self-defence, of self-protection, is, and 
ever must, on certain occasions, be left to the indi- 
vidual. It is left to the nation, and to certain pur- 
poses, as I shall hereafter endeavor to prove, is vested 
in the higher and more independent departments of 
the government. The right of judging is in any man 
or body of men coexistent and precisely coextensive 
with the right of self-defence or self-protection. Of 
what avail would be the right of self-defence, unac- 
companied by the right to judge of the means and 
measures of the defence necessary ? Is a person 
whose life is threatened with an instant attack, coolly 
to refer his case to some tribunal to decide whether 
the occasion will justify a defence, and to what pre- 
cise extent ? No, sir, the laws of nature do not thus 
defeat its rights. Those laws have inseparably con- 
nected the right of judging with the right of self- 
defence ; the latter cannot exist even in theory with- 
out the former. The individual is still under the 
correction of the law, to which he is amenable for 
the exercise of this and every other personal right. 
Public bodies are under the restraint of character and 
public opinion ; and these will, on all occasions, be a 



LIFE OF NATHANIEL CHIPMAN. 115 

sufTicient security for the use of a sound discretion in 
the exercise of the right. 

Sir, in recurring to the resolution before us, I per- 
ceive that in this discussion are involved principles 
of great importance and extensive influence. For, 
though at this time we apply them to a single part 
only, yet either directly or in their consequences, 
they aflect all the great principles of our government. 
They are, perhaps, involved in some degree of ob- 
scurity ; but, I believe, the obscurity arises rather 
from the novelty of a discussion of these principles, 
than from anything in the nature itself of the princi- 
ples. Satisfied with a practice which has been hand- 
ed down to us from time immemorial, the principles 
in which the practice was founded have been suffer- 
ed to remain unexplored, and to become obscured 
through the rust of neglect. It is necessary to draw 
them from that rust, and carefully examine them on 
this occasion. 

If, sir, the privileges which are asserted in the reso- 
lution are not constitutionally vested in this senate, 
we ought to reject it, as leading to an unwarrantable 
assumption of power. But, sir, if certain rights are 
established by the constitution, and committed to the 
senate in trust, for the protection of the body, and to 
enable it in conjunction with the other branches of 
the government calmly and securely to pursue the 
great end of its institution, the happiness and pros- 
perity of the community, can we neglect to assert 
those privileges, and vindicate those rights, if at any 
time we shall see them grossly violated ? If we 
should neglect, from a supine inattention, we should 



116 LIFE OF NATHANIEL CHIPMAN. 

be chargeable with unfaithfulness to our trust. If, 
clothed with competent authority, as I conceive we 
are, we neglect through fear, we are chargeable with 
weakness. If, from partial considerations or sinister 
motives, we refuse, we are justly chargeable with 
criminality. 

It is said, sir, that the constitution of the United 
States, by which alone all the powers of this govern- 
ment are instituted, has vested in the senate no privi- 
leges, in the parliamentary sense of that term, exclu- 
sive of the privilege of the individual members. All, 
however, have not gone so far. 

Let us carefully investigate this important subject. 
Let us inquire, 

1. Whether any privileges are, by the constitution, 
vested in this senate, extending to the whole body ? 

And 2. If any such are vested, whether we are 
prohibited by any express clause in the constitution, 
or any necessary construction, to claim or assert 
them ? 

Sir, it is said that there is in the constitution no 
grant of privileges to congress, or to either house of 
congress, in express words, and this may without diffi- 
culty be admitted. But first let it be observed, that 
the words " granted " and " delegated " are not in 
the constitution used in the appropriate sense of those 
words, but as equivalent to the word " instituted." 
The people of the United States, with the assent of 
the states governments, which had been already es- 
tablished, instituted the national government and its 
several powers, but did not grant or delegate either. 
Did the people grant or delegate the power to them- 



LIFE OF NATHANIEL C'lTIPMAN. 117 

selves ? This would be an absurdity. Or to the state 
governments? This will not be contended. Or to 
the administrators of the national government ? Cer- 
tainly not. The national government and its powers 
were, by the constitution, instituted for the general 
good, and in the same instrument a provision is insti- 
tuted for designating the several agents, who shall be 
the administrators of the powers of that government. 
They are not grantees or delegates of those powers ; 
they are merely agents of the nation, constitutionally 
designated for the exercise of those powers. In 
speaking of the agents, there is no particular impro- 
priety in saying that they are delegated to the exer- 
cise of the instituted powers of government. 

After premising these observations, I again say, we 
may safely admit, that there is in the constitution no 
grant, delegation or institution of privileges to con- 
gress, or to either house of congress in express words. 
And yet, sir, I have no possible hesitation in saying, 
that it is clearly demonstrable that both branches of 
the national legislature are fully invested with these 
privileges. 

1st. From the institution itself, its nature and 
necessary results. 

2d. From the certain, and, I may say, unavoidable 
intention, in framing the constitution. 

Sir, the federal constitution is, in its nature and 
design, a political institution, calculated to concen- 
trate the views and interests of all within the limits 
of its operation to one great national point; to bind 
the states in a national union ; and to give to the 
whole, if the expression be allowjible, n nntionnl indi- 



118 LIFE OF NATHANIEL CHIPMAN. 

viduality. And, if this constitution be not an ano- 
maly, a heteroclite in kind, it has its necessary and 
inseparable incidents, relations, and constructions. 
Moral and social rights and duties result from moral 
and social relations. Such relations necessarily, nay, 
I may say, naturally exist in every community, varied 
indeed, and modified, by the state of society and by 
civil institutions. In these relations are found the 
principles of common justice, exclusive of positive 
institutions, as they are applied to social rights and 
duties in each community. These are the principles 
of common right, or, more intelligibly expressed, of 
common law, in every nation. This is the true and 
genuine source of these principles, whether in Eng- 
land, in France, or in the United States. 

When, sir, in forming a government, various parts 
are instituted and organized into a whole, completing 
a constitution, the institution of the various parts, 
thus organized, is an institution of all the necessary 
relations thence arising, and of all the rights, duties, 
and powers resulting from these relations. It is true 
that these rights, duties, and powers may, in their 
observance and exercise, be limited and modified by 
express provisions in the institution ; but, if not so 
limited and modified, they are, in their nature, co- 
extensive with the subject, scope, and end of the 
institution itself. And is there, sir, anything in the 
constitution of the United States, — in its origin, in 
the manner of instituting its powers, or in the sub- 
jects of its operations, — which so far changes its 
nature, that no relations are incident to it ? That no 
principles of rights and duties are to be found in its 



LIFE OF NATHANIEL CHIPMAN. 119 

results? Or are its incidents, its relations, barren 
of all result, — atTording no ground for genuine con- 
struction ? No, sir ; it has its relations, necessary 
and inseparable from its organization, and from those 
relations certain rights and duties necessarily result. 
Nor can it be doubted that, organized as this govern- 
ment is, it is invested with power competent to pro- 
tect and enforce, in every branch, all its constitutional 
rights and duties. One of these rights is the right 
of self-protection. It is a right natural to, and inhe- 
rent in, every sensitive being ; from the lion that 
prowls in the deserts of Lybia, to the ephemeral 
insect that floats on the breeze of summer, — not 
more in nations and communities instituted by man, 
than in the gregarious association of brute animals 
and insects. The community of the beaver, of the 
bee and the ant, — to all, this right is the sacred 
institution of nature. It will not be denied that it 
exists in every nation, against foreign aggression as 
well as against domestic violence. In the individuals 
of a nation it exists, and is permitted in cases of im- 
mediate and urgent necessity, under the guaranty 
and restraint of law. In subordinate communities, 
as in corporations, it also exists, under the same 
guaranty and restraint of law ; for corporations are 
considered but as individuals, as artificial persons, 
and are, like other individuals, under the ordinary 
control and protection of law. It is different with 
the nation, — it is different with the several branches 
of the government, — as they are placed in a state 
of greater independence as they rise higher in the 
communitv. Not to instance in the lower grades 



120 LIFE OF NATHANIEL CHIPMAN. 

of the judiciary magistracy, such is the situation of 
a court of law, — in many respects an independent 
branch of the government, — that, although the ad- 
ministrator of the laws, it cannot, as a court, be 
under the protection or control of the law in the 
ordinary mode. It cannot be consistent with its 
situation, by its personal prowess, to repel insults and 
repress disturbances. Hence it is vested with the 
right, the power to punish contempts, — a power 
commensurate with the end, a due and orderly ad- 
ministration of justice, — a power, though not ex- 
pressed, always understood, and acknowledged to be 
inseparably incident to the institution. This right 
and power in the courts of law to punish contempts, 
is, in each branch of the legislature, the privilege of 
the body, and the right to punish a breach of these 
privileges. 

Placed in the most eminent station in the com- 
munity, each branch of the legislature stands on still 
higher ground than a court of law. Not being, as 
a body, under the protection or control of the law in 
the ordinary mode, and more independent, they have 
no coordinate or superior power to which they may 
apply, to protect them against insults, against per- 
petual disturbances and interruptions. There is, 
therefore, vested in each branch of the legislature, 
this right and power of self-protection, — a right and 
power to punish a breach of its privileges ; and, from 
the relations of the legislature in the community, and 
the important ends of their institution, the right and 
power are in this respect more full, more extensive, 
and more independent, than in any other department 
of the government. 



LIFE OF NATHANIEL CHIPMAN. 121 

It will be observed, that, in this government, the 
executive magistrate is under the control as well as 
the protection of the ordinary laws, and, in the dis- 
charge of his functions, in a situation different from 
that of the legislature or judiciary branches, can 
neither need nor obtain the exercise of this power. 

Then, sir, the privileges of this senate derive their 
origin from the constitution of the government, from 
the nature and necessary result of the institution. 

An equally strong, if not stronger, ground of argu- 
ment, is to be found in the necessary and unavoidable 
intention in the formation of the constitution. In 
discussing this topic, sir, it will be necessary to in- 
quire what were the habits of thinking, what were 
the opinions which have universally prevailed in this 
country, in civil life and on civil institutions, from its 
first colonization down to the time of forming and 
adopting the present constitution of the United 
States, — habits and opinions which must have in- 
fluenced every deliberation, and blended with every 
result in that important transaction. It will be neces- 
sary, likewise, to examine the constitution, and to 
see whether, in all its expressions and allusions, it 
does not clearly evince the predominance of such 
habits and opinions. 

The common law of England was, and is, the 
common law of the several states. The people, 
from the first colonization in the country, claimed 
the common law as their birthright, and its rights 
and privileges as their unalienable inheritance. For 
such, sir, was ever the strong language of their 
claim. To repel encroachments on these rights and 



122 LIFE OF NATHANIEL CHIPMAN. 

privileges, they drew the sword against the country 
from which they were descended, and by the revo- 
lution, at an immense expense of blood and treasure, 
secured the enjoyment to themselves, independent 
of the parent state. 

There were, however, admitted, in this country, 
some necessary exceptions, some necessary variations 
from the common law of England. From the differ- 
ent situations of the two countries, and the difference 
of the governments, the subjects of the law were 
not always the same. The relations arising from the 
monarchical constitution of the executive, and the 
hereditary branch of the legislature, in England, did 
not exist in this country. The doctrines, therefore, 
peculiarly applicable to those subjects, could not 
exist here in practice, — certainly not since the revo- 
lution. The same observations will apply to reli- 
gious and other national establishments, which have 
either not been adopted, or have been discontinued 
in the states. 

The different land tenures in many of the states, 
excluded in practice many doctrines of the common 
law of England, there being no subject to which they 
could apply. Subjects and relations may have ex- 
isted here, which did not exist in that country. Ju- 
dicial decisions on these subjects, founded in the 
principles already mentioned, may have made an ad- 
dition to our common law. Statutes of the different 
states adapted to local circumstances and occurrences, 
in many instances produced considerable variations 
from the common law of England, and that in differ- 
ent degrees. 



LIFE OF NATHANIEL CHTPMAN. 123 

AVith these variations, the doctrines of the common 
law which, from the country of its origin, and vast im- 
provement as a science, we call the common law 
of England, were indissolubly blended with nil the 
thoughts, opinions and actions of the people of these 
states, in civil and social life. This common law and 
its principles, they had constantly in view in all their 
regulations, establishments and institutions. These 
principles, long established in practice, they knew, they 
considered them, (where no deviation was expressed, 
or intention of deviation apparent,) as directing the 
operations and limiting the extent of all their civil 
institutions. A constant recurrence to these known 
principles, served them on such occasions instead of 
volumes. 

Such, sir, were the habits, and such the opinions of 
those illustrious characters, who, in the grand con- 
vention of these states, framed and proposed the fed- 
eral constitution, and of the people by whom this 
constitution was adopted. Thus circumstanced, is 
it to be supposed that the members of that conven- 
tion and the people of these states tacitly excluded all 
reference to the common law, its rules and reasons, 
in the establishment of this institution, and all its va- 
rious provisions ? and that, too, when employed in 
subjects, the common law doctrines and principles of 
which were as familiar to them as their ordinary 
thoughts ; nay, which formed an essential part of all 
their civil and political institutions? The supposi- 
tion is absurd — the thing is wholly incredible. Nay 
sir, to any powers of mind so formed, it was utterly 
impossible. 



124 LIFE OF NATHANIEL CHIPMAN. 

Again, sir, let us resort to the instrument itself, to 
the expressions and allusions in the constitution. We 
find there mention of suits at common law, and in 
some instances, an observance of the rules of the 
common law, expressly enjoined with a view of lim- 
iting in such instances, the legislative power of con- 
gress. A judicial power is instituted, and the objects 
of its jurisdiction generally ascertained ; but what 
questions are of judicial cognizance, must be learned 
from the common law, or must remain unknown. 
To that law we must resort for the knowledge of a 
jury, and of a trial by jury ; for the definition of an 
impeachment, and for the manner of proceeding on 
an impeachment ; for a definition of bribery, perjury, 
felony, and many other terms there used in the tech- 
nical sense of the common law. Even for a know- 
ledge of the legislative power of congress we must 
resort to the same source — the doctrines of the com- 
mon law. It is true, the constitution has in particu- 
lar or general terms hmited the legislative power of 
congress to certain subjects, but the power itself on 
those subjects it has nowhere defined. It is nowhere 
in that instrument said, that the legislature has always 
the power of repealing, altering, and modifying its 
former laws ; that its power is uncontrollable within 
its constitutional limits. From a knowledge, how- 
ever, of the common law principles and practice on 
this subject, these things are perfectly familiar. But, 
sir, it is unnecessary to multiply observations on the 
common law principles embraced in the constitution. 
Proofs to our purpose will be found in every article, 
in every section ; even in those which were intro- 



LIFE OF NATHANIEL CHIPMAN. 125 

duced for the purpose of altering the common law in 
particular instances, forming exceptions to the general 
rule. 

The privileges of the legislative body were not in 
this country a mere theory of the common law of 
England, or of the law of nature. It is a doctrine 
which was known, acknowledged and adopted in 
practice in every colony before the revolution, and 
since that period has justly been considered essential 
to the functions of every independent legislature. 
Some of the states constitutions, from abundant cau- 
tion, have expressly recognized this power, while 
others have been silent on the subject. But the legis- 
latures of all the states have exercised the powers 
whenever occasion demanded it. If there may now 
be found a singular instance or two of a dereliction 
of the right, or of the exercise of the power, that 
cannot bear down the immense weight of authority 
on the other side. 

I conclude, therefore, that those rights which we 
have denominated privileges, and the power of pun- 
ishing for a violation, the right and power of self- 
protection, are, from the nature of the institution, 
and the clear, undeniable intention in the formation 
of the constitution, vested in the fullest sense in this 
senate. But we are told, that incidents and results 
otherwise necessary may be limited and excluded by 
express stipulation, and that thus it is in the constitu- 
tion of the United States. The 10th article of the 
amendments to the constitution is in these words : 
"The powers not delegated to the Ihiitcd States by 
the constitution, nor prohibited by it to the people, 

IG 



126 LIFE OF NATHANIEL CHIPMAN. 

are reserved to the states and the people respect- 
ively." This article, it is said, cuts oft' every source 
of construction relative to power. That although 
certain rights and duties may result from certain re- 
lations established in the constitution, yet the arm of 
power raised to enforce these rights or duties in any 
instance not specified in the words of the instrument, 
is at once paralyzed by the magic of this formidable 
article. 

But let us fairly examine it. It is not said " the 
powers specified in terms " or " the powers not ex- 
pressed and defined," but, "the powers not dele- 
gated," or to express the precise meaning in the true 
constitutional sense. The powers not instituted " are 
reserved." And surely, sir, the powers instituted in 
the constitution, are delegated in any sense in which 
the word is there used. Sir, in answer to this ob- 
jection, permit me to repeat a former observation : 
" When, in forming a government, various parts are 
formed and organized into a whole, completing a 
constitution, the institution of the various parts thus 
organized is an institution of all the necessary rela- 
tions thence arising, and of all the rights, duties and 
powers resulting from those relations." Nay, sir, 
these results, the rights, duties and powers, are the 
real end of the constitution ; the organization is but 
the means of effecting that end — stripped of its re- 
sults, what remains ol the constitution ? An organized 
body without a mind — a skeleton without life, with- 
out efficiency. Does, then, this article annul, does 
it limit any one right, duty, or power lliirly delegated 
or instituted in the constitution r Does it in any 



LIFE OF NATHANIEL CHIPMAN. 127 

sense vary the original, genuine construction ? It 
certainly does not. It is mere surplusage ; or, to say 
the least, was admitted from abundant caution. 

Still, sir, another objection is urged from the same 
source. In the first article of the amendments, it is 
said, " Congress shall make no law respecting an es- 
tablishment of religion, or abridging the freedom of 
speech, or of the press, or the right of the people 
peaceably to assemble, and to petition the govern- 
ment for a redress of grievances." The meaning of 
this article, it is insisted, is, that congress shall have, 
on no pretence, the right or power to restrain, or in 
any way to animadvert on the publishing in speech 
or in print, of the most outrageous abuse, the most 
violent threats against the government. Nay, the 
most pressing invitations, the most public and daring 
exhortations to immediate insurrection and rebellion. 
Cono-ress are not, as in the same article relative to an 
establishment of religion, prohibited to make any law 
on the subject of speech, or of the press ; but to 
make any law abridging the freedom of either. If 
we suppose this prohibition to extend equally to the 
case now before us, as to that of passing a law, still 
it opposes no objection. True freedom or liberty is 
inseparable from the just and the right. True free- 
dom is always governed and limited by this ancient 
and expressive maxim, " So use your own that you in- 
jure not the right of another." It is too monstrously 
absurd to maintain, that to guaranty to any one the 
liberty or freedom of action, is to guaranty to him a 
right to do wrong — to commit crimes with impunity. 
Yet this is precisely the whole force of the objection. 



128 LIFE OF NATHANIEL CHIPMAN. 

Still, it is urged, that, although it may be admitted 
that the senate have certain privileges, and a power 
to punish a breach of those privileges, yet no pub- 
lication, in speech or in print, respecting the senate 
and their proceedings, however false, however slan- 
derous, however rancorous, can amount to a breach 
of privilege. If it be conceded as a natural right, 
and from the necessity of the case, that the senate 
shall have the power to punish, as a breach of its 
privileges, a direct attack upon them in session, — 
an insolent disturbance of their deliberations, — yet 
it can extend to nothing out of their presence. 

This, I think, however, will, on a bare examination 
of the cases which have occurred, and may occur, 
be found not to be just. The ground is much too 
narrow. The end for which these privileges were 
instituted is, to protect and secure the senate against 
all those violent proceedings from without, which 
directly, or by immediate consequence, tend to out- 
rage their persons, interrupt their deliberations, over- 
awe their proceedings, or to corrupt their integrity. 
Suppose some one should, out of the house, make 
a personal attack on a member, to prevent his attend- 
ance on his duty in the senate ; or should threaten 
to assassinate a member, if he did not vote in a 
certain manner on some question depending; or 
suppose a number of persons assembled at a little 
distance, out of the hearing of the senate in their 
seats, should constantly utter the most outrageous 
threats, with a view that information might reach 
and overawe the members ; were they to publish 
these threats, in handbills stuck upon the walls of the 



«* 



LIFE OF NATIIANIFT. CHIT MAN. 129 

senate-house, or in a newspaper printed and daily 
circulated in the place of their session ; — would not 
all these be equally breaches of the privileges of this 
house ? Or is a threat less so because it is delibe- 
rately reduced to writing or published in print ? Cer- 
tainly not. An attempt to bribe a member, although 
done out of the house, is clearly a breach of the 
privileges of the house. It was solemnly so decided 
by the house of representatives. Another case, I am 
clearly of opinion, is the one before us. Is not a 
false and scandalous publication, made and circulated 
in the place of their session, maliciously misrepre- 
senting the motives and proceedings of the senate 
and its organs, — reducing them, if without all power 
of redress, to sit and deliberate under the constant 
apprehension of the public contempt, the public in- 
dignation, injuriously excited against them on the 
very subject of their deliberation, — a high-handed 
and daring breach of the privileges of the body.'' 
Is it not an attempt, has it not a direct tendency, 
to overawe their proceedings ? Or does it vary the 
nature of the attempt, that the members of this body 
have firmness enough to resist the impulse ? Cer- 
tainly, sir, if any case can occur which may be 
deemed a breach of the privileges of this house, this 
is one. If any which can call for an exercise of its 
powers, this is eminently one. I therefore think it 
my duty heartily to concur in the resolution. 

The following letter will show the views which 
he entertained of the French revolution while it was 
in progress, and subsequent events have shown how 
far these views were correct : 



130 LIFE OF NATHANIEL CHIPMAN. 

Philadelphia, February 28th, 1800. 

Dear Sir, — The mail arrived so late last week, 
that I had not time to call on Mr. Wollcot ; I will 
see him, and write to you the result by the next 
mail. 

It is difficult to say what will be the effect of the 
late revolution in France, — what will be the next 
revolution, and the next ; and whether it will end in 
the restoration of monarchy to the ancient line under 
some modifications, or whether ambitious tyrants, 
under the title of Directors or Consuls, according 
to the caprice of the moment, will continue to exer- 
cise over the people of that country the most severe 
military despotism for years to come, cannot be fore- 
seen. I do not believe that the policy of France 
will be materially changed under the present regimen. 
We may expect to find the same faithless spirit of 
intrigue, the same restless ambition, pursuing its 
object, per fas et nefas, by open war or treacherous 
peace, as either shall appear at the time most con- 
ducive to the end they have in view. It is not easy 
to foresee what will be the final effect of all this 
upon the people of this country. With one part of 
the community, it seems to be a link in the chain 
which leads them on to a love of tyranny and mili- 
tary despotism, and to forget, if not to hate and 
despise, the rational liberty which is secured to all 
in this country, by the mild energies of our own 
government. The infatuation is unaccountable ; — 
the warmest zeal for liberty, with the most enthu- 
siastic adoration of tyranny. 

The late revolution in France will probably retard 
the business of our envoys; their credentials were to 



LIFE OF NATHANIEL CHIPMAN. 131 

the Directory, which is not now in existence. They 
wait for the arrival of other credentials to the Con- 
suls; perhaps it will be best to send a number in 
blank, to be filled up, as occasion shall require, with 
the style of the executive authority for the time 
being. I am, dear sir, 

Your sincere friend, 

Nathaniel Chipman. 

By the first judiciary act organizing the courts of 
the United States, passed in September, 1789, two 
courts, denominated circuit courts, were to be holden 
annually in each judicial district, by any two justices 
of the supreme court and the judge of the district. 
The attendance of two justices of the supreme court 
at each circuit court in the respective districts, beside 
two sessions of the supreme court holden annually 
by all the justices at the seat of government, required 
of the judges such burdensome services, that they at 
length addressed the following letter on the subject 
to President Washinirton : 



o 



Sir, — Your official connection with the legisla- 
ture, and the consideration that application from us 
to them cannot be made in any manner so respectful 
to government as through the President, induce us 
to request your attention to the inclosed representa- 
tion, and that you will be pleased to lay it before the 



congress. 



We really, sir, find the burdens laid upon us so 
excessive, that we cannot forbear representing them 
in strong and explicit terms. 



132 LIFE OF NATHANIEL CHIPMAN. 

On extraordinary occasions, we shall always be 
ready, as good citizens, to make extraordinary exer- 
tions. But, while our country enjoys prosperity, and 
nothing occurs to require or justify such severities, 
we cannot reconcile ourselves to the idea of existing 
in exile from our families, and of being subject to a 
kind of life on which we cannot reflect without ex- 
periencing sensations and emotions more easy to 
conceive than proper for us to express. 

With the most perfect respect, esteem, and attach- 
ment, we have the honor to be, sir, 

Your most obedient and most humble servants, 
(Signed) John Jay, 

William Cushing, 
James Willson, 
John Blair, 
James Iredell, 
Thomas Johnson. 

The President of the Uaited States. 

The President communicated this letter to congress 
on the seventh of November, 1792. And it was un- 
doubtedly in consequence of this communication that 
the judiciary act was revised at the same session. 
An act was passed authorizing one justice of the 
supreme court, with the district judge, to hold a cir- 
cuit court. In case of their being divided in opinion 
on the final hearing of a cause, or on a plea to the 
jurisdiction, the cause to be continued to the succeed- 
ing term, when another justice might attend. This 
arrangement ailbrded some relief to the judges of the 
supreme court, but was found to produce serious in- 



LIFE OF NATHANIEL CHIPMAN. 133 

convenience to the suitors. To remove these incon- 
veniences, and to improve the judicial system, con- 
gress passed an act on the 13th of February, 1801, 
entitled an act for the more convenient organization 
of the courts of the United States. By this act, six 
circuits were established ; five for the Atlantic states, 
and a sixth for Kentucky, Tennessee, and the district 
of Ohio. To each of the five first circuits, three 
circuit judges were assigned, and an annual salary 
of two thousand dollars was allowed to each judge. 
In the sixth circuit, the judicial duties were to be 
performed by a circuit judge, with the assistance of 
the district judges of Kentucky and Tennessee. 
After the circuit judges had been appointed and 
commissioned, and after they had entered upon the 
performance of their judicial duties, according to the 
provisions of the act constituting the circuit courts, 
in the senate of the United States, on the sixth day 
of January, 1802, Mr. Breckenridge, a senator from 
Kentucky, introduced the following resolution : 

Resolved, That the act of congress, passed on the 
13th of February, 1801, entitled, an act for the more 
convenient organization of the courts of the United 
States, ought to be repealed. 

In opposition to this resolution, Nathaniel Chipman 
delivered the following speech : 

Mr. President, — After the length of time which 
has already been consumed, and the abilities which 
have been displayed in this debate, I can have but 
little hope of exhibiting anything new for the con- 
sideration of the senate. Yet, momentous as I con- 

17 



134 LIFE OF NATHANIEL CHIFMAN. 

sider the decision to be made on the present ques- 
tion, involving consequences powerfully affecting the 
most important principles of the constitution, I can- 
not persuade myself to give a mere silent vote on the 
occasion. In the observations which I intend to 
make, I shall endeavor, briefly, to examine some of 
the principal arguments only, which have been offered 
in favor of the resolution on your table. 

The arguments, in support of the resolution, have 
been reduced under two general heads. 

1. The expediency of repeahng the law contem- 
plated in the resolution, and 

2. The constitutional power of congress to repeal 
that law. 

To evince the expediency of the measure it has 
been said, that the system of 1793 was adequate to 
all the purposes of the national judiciary ; and that 
the judges, appointed under that system, were com- 
petent to all the judicial duties required. Upon this, 
sir, I shall briefly observe, that from the number of 
terms of the supreme and circuit courts, and the 
immense distance to be travelled, the labor was un- 
reasonably great. From the labors and fatigues of 
riding the circuit, there could not be allowed time 
sufficient for those studies, and for that calm and de- 
hberate attention, which is so necessary to the pro- 
per discharge of the duties of a judge. 

At times it has happened, that a supreme judge 
could not attend a circuit court ; from this circum- 
stance the court in the district to which I have the 
honor to belong, has more than once failed to be 
holden. At other times the arrival of the judges has 



LIFE OF NATHANIEL CHIPMAN. 135 

been so late, that the proper business of the term 
could not be completed. These failures occasioned 
very great delay, expense, and vexation to the suitors ; 
and we know that the same, or greater failures and 
delays, have unhappily been experienced in other 
parts of the United States ; failures and delays which 
I cannot attribute to any criminal negligence of the 
judges, but to the burthensome duties imposed by 
that system, and the infirmities and accidents to which 
men must ever be exposed, in the performance of 
labors so arduous and extensive. 

To prove that judges of the supreme court must 
have been competent to all the duties of that and the 
circuit courts, the honorable gentleman who intro- 
duced the resolution, drew a comparison from the 
courts and judges in England. He has told us that 
in England there are but twelve judges, and three 
principal courts ; that these courts embrace, in their 
original or appellate jurisdiction, almost the whole 
circle of human concerns ; that the two courts of 
king's bench and common pleas, consisting each of 
four judges, entertain all the common law suits of forty 
shillings and upwards, arising among nine millions of 
the most commercial people in the world ; and that 
they have, moreover, the revision of the proceedings 
of the subordinate courts in the kingdom, down to the 
courts of piepoudre ; and that from long experience 
these courts have been found fully competent to all 
the business of the kingdom. This statement, sir, is 
by no means correct. In England the house of lords 
is the supreme court of appeals in the last resort, in 
cases both at law and in equity. Instead of three 



136 ^IF^OF NATHANIEL CHIPMAN. 

there are four superior courts. The court of chan- 
cery, in which are decided all suits and matters in 
equity, including a very numerous and important class 
of causes. The courts of king's bench, common 
pleas, and exchequer, all of which have original juris- 
diction in civil causes ; and the king's bench, besides 
beintr the highest court of criminal jurisdiction, has 
also the correction and revision of the proceedings 
of all the subordinate courts, by writ of error or other- 
wise. The subordinate courts, which were barely 
mentioned, are very numerous. There are, in Eng- 
land, exclusive of Wales, more than forty counties, 
all of which have their separate courts and judges. 
Some of the counties are regular franchises. Lan- 
caster, Chester and Durham, have their separate 
courts, both of law and equity, which claim cogni- 
zance of causes and parties, within their respective 
jurisdictions, even against the courts at Westminster. 
There are also an immense number of cities and 
towns corporate throughout the kingdom, the courts 
and judges of which, though more or less limited in 
their jurisdiction, entertain a vast variety of civil suits. 
There are, besides these, the high court of admiralty, 
which has an exclusive jurisdiction in maritime causes; 
the courts of the two universities, the prerogative 
court of the Archbishop of Canterbury, the archiepis- 
copal court of York, the diocesan and other ecclesi- 
astical courts, having also an extensive jurisdiction, 
of a civil nature, in causes testamentary, and those 
relating to the distribution of the goods of intestates. 
Wales is a principality, and its courts have exclu- 
sive original jurisdiction within the territory. The 



LIFE OF iNATHAiMEL CHIFMAN. 137 

great sessions is the highest court of the principahty, 
from which a writ of error hes in the court of king's 
bench. The subordinate courts and judges are 
equally numerous, in proportion to the territory and 
inhabitants, with that of England. I omit the courts 
of conscience and other inferior courts, and magis- 
trates almost without number. From this view, though 
imperfect, it is evident that the comparison attempted 
by the honorable gentleman, is by no means favora- 
ble to his conclusion. The population of that coun- 
try exceeds that of the United States by one third, 
perhaps more ; but its whole extent, exclusive of 
Wales, though not comprehended in the nisi prius 
circuits, does not equal one of the circuits of the 
United States, under the system of 1793; and yet 
that country employs, it is believed, more courts and 
judges, not only than the government of the United 
States, but than all the individual states taken in addi- 
tion. I do not, however, conceive that any advan- 
tage is to be derived from the comparison, to the one 
side or the other. The situation of property and 
civil policy, numerous and complicated rights, intro- 
duced by ancient usages, and supported by laws and 
habits, and by interests public and private, may ren- 
der a greater number of courts and judges, a more 
extensive judicial system, necessary in one country 
than in another ; I think it ought to be laid wholly 
out of the question. 

It has been said, that a knowledge of the local 
laws, of the customs and manners of the several 
states, is necessary to the judges of the supreme 
courts, and cannot be dispensed with on appeals in 



138 LIFE OF NATHANIEL CHIFMAN. 

causes arising in different parts of the union, and 
that the judges can acquire this knowledge in no way 
but by attending the circuit courts in the United 
States. But let me observe, sir, that the laws of the 
several states, which vary from the common law, are 
to be found in their statute books, in the decisions of 
their courts and their rules of practice ; for no cus- 
tom can as such become a law until it shall have 
been adopted by usages and established by judicial 
decisions. All these may be made to appear on an 
appeal, either on the face of the record in the plead- 
ings, or in a special verdict, or by proper exemplifi- 
cation, and will afford the court in such case a more 
correct knowledge than the recollection of a judge of 
what he has caught in the hurry and fatigue of a 
circuit. 

A further objection has been urged against the con- 
tinuance of the present judicial system, from the addi- 
tional number of judges which it has introduced, 
which it is said may prove dangerous to the liberties 
of the country. An honorable gentleman from Geor- 
gia, (Mr. Jackson,) cited the opinion of an author 
who has written on the British constitution, that the 
greatest political evil which could befall a country, 
was the existence of large judiciary bodies, and who 
had illustrated his ideas on the subject by instancing 
the parliaments of France. The observation does 
not, neither was it meant by the author to apply to 
any particular number of courts in due subordina- 
tion, each consisting of a small and limited number 
of judges, and employed solely in proper judicial bu- 
siness. But it applies with force to courts composed 



LIFE OF NATHANIEL CHIPMAN. 139 

of numerous members and forming large bodies, who, 
in addition to their proper judicial functions, are per- 
mitted to assume an authority in the political concerns 
of the nation. 

Such were the parliaments of France, the late 
judicial courts of that country ; particularly the par- 
liament of Paris. The members of this body were 
very numerous, and as it was necessary that all 
royal edicts, before they were to be considered as 
laws, should be registered in that court ; they claimed 
the right of deliberating and deciding on the regis- 
tration of any edict offered by royal authority, and 
consequently of permitting or refusing it the sanction 
of a law. With this claim that body certainly be- 
came dangerous to the existing government, and the 
contest ^vhich ensued between them and the king on 
this subject, had no doubt a powerful effect in pre- 
cipitating the late revolution in that country. 

But there is nothing in all this which can be applied 
to the courts of the United States. Let me observe, 
sir, that there has always appeared to me in the 
system of 1793, which is sought to be restored, a 
very great and manifest impropriety. The circuit 
courts were in that system, though subordinate, in 
some measure blended with the supreme court, one 
or more of the judges of the supreme court being 
always judges of the circuit courts. This rendered 
the supreme court a fluctuating body, some of the 
judges of the supreme court being always excluded 
in the decision of causes coming by appeal from the 
different parts of the United States. And when two 
supreme judges held the circuit courts of the four re- 



140 LIFE OF NATHANIEL CHIPMAN. 

maining judges, who were to decide on an appeal, 
three might reverse a judgment against the opinion of 
the fourth, and the opinion of the two judges in the 
circuit court, unless those judges, from whose judg- 
ment the appeal was made, gave also their opinions 
in favor of an affirmance, and which they might do, 
their exclusion being indeed only voluntary from a 
high and just sense of propriety. This has always 
appeared to me, to say no more, a very glaring im- 
propriety in that system. The circuit courts under 
that system have indeed been compared to the nisi 
prius courts in England, but the slightest attention 
will convince any one that they do not compare. 
The circuit courts in our system are courts of origi- 
nal and distinct jurisdiction. Not so the courts of 
nisi prius in England ; they are considered as a 
branch of the superior courts, at Westminster, and 
are held by a commission of assize usually issued to 
a judge of one of the superior courts, and an asso- 
ciate for each of the six circuits into which England 
is for that purpose divided. When a cause in any of 
the superior courts is by the pleadings put on an issue 
of fact, it is with the record sent to be tried at nisi 
prius by a jury of the proper county ; instead of call- 
ing up a jury to try it at the bar in Westminster Hall. 
After the trial at nisi prius, the verdict with the record 
is remitted to the court, out of which it was sent, and 
there the opinions of the nisi prius judge, and the 
conduct of the jury are examined, and considered as 
matters passing in the same court. Here, then, the 
comparison wholly fails; there is no similarity be- 
tween the two systems, except that of a judge riding 
the circuit. 



LIFE OF NATHANIEL CIIIPMAN. 141 

Here, sir, I shall waive any further observations on 
this part of the subject, and come to the great ques- 
tion which it is necessary to decide. Have congress 
the constitutional power to repeal the law as con- 
templated by the honorable mover of this resolution ? 
To abolish the courts established by that law, put 
down the judges and abolish their salaries ? It is 
true, as was observed by the honorable gentleman 
from Georgia, (Mr. Baldwin,) that the resolution does 
not necessarily involve that question, because the re- 
pealing act, if the resolution should be adopted, may 
be so modified as to avoid any difficulty relative to 
the salary of the judges. But as the honorable mover 
avowed his intention to be an abolition of the courts, 
the offices of the judges, and their salaries, and as the 
principal arguments have, in the course of this de- 
bate, been directed by that view of the subject, I shall 
be permitted to consider it on that ground. 

One source of argument in favor of the measure 
proposed, has been derived from the powers consid- 
ered as incident to every legislative body. It is said, 
that a power to repeal all its legislative acts is insepa- 
rably incident to every sovereign legislature ; that the 
act, the repeal of which is contemplated, is a legisla- 
tive act of congress, therefore congress necessarily 
have the power to repeal it ; that to admit the con- 
trary, is to say that the power of congress at one 
time, is not equal to its power at another time ; that 
a subsequent congress may be bound by the acts of a 
former, contrary to a very important maxim in legis- 
lation ; in a word, that it is to make the creature 
greater than the creator, as it denies to congress the 

18 



142 LIFE OF NATHANIEL CHIPMAN. 

power over its own acts which it has passed, and will, 
of course, put a stop to all amendments, all improve- 
ments of our laws. The doctrine here meant to be 
asserted is not in the full extent applicable to the 
legislative powers under our constitution. There are 
acts which congress are by that instrument expressly 
denied the power of passing ; there are acts which, 
whenever passed, congress cannot repeal, or rather 
the eifects of which they cannot suspend, much less 
can they destroy. They are expressly denied the 
power of passing ex post facto laws ; and this applies 
no less forcibly to a repealing act than to any other 
act — it is by its operation that the nature of the act 
is in this case determined. Every act, which in its 
operation attempts to divest any right previously ac- 
quired, whether by a former act of legislation, or by 
any other lawful means of acquisition, is in name, 
nature and essence, ex post facto. Indeed, sir, I ap- 
prehend that some gentlemen have been led into a 
mistake on this subject by an incautious admission of 
maxims and theories of legislative powers, in an- 
other government, but which do not apply to our 
government, as instituted and limited by our consti- 
tution. There are, sir, in every nation, two kinds of 
legislative powers. The one is original and extraor- 
dinary, and may be called the power of political legis- 
lation. It is by an associating nation employed in 
forming and organizing the government, in disposing 
its powers, and defining or limiting their exercise. 
The other is derivative ; the ordinary power of legis- 
lation, and is employed in the civil regulations of the 
community. In the first consists the political sove- 



LIFE OF NATHANIEL CIIIPMAN. 143 

reignty of the nation. Tliis power is transcendent. 
It is paramount to all other powers in the nation. It 
can create powers, rights, and duties, and can abolish 
them at pleasure ; not because what it does is always 
wise or even just, but because no other power in the 
nation can have a right, or can be equal to control its 
operations. In Great Britain, from ancient usage, 
the consent of the nation, witnessed by long and gen- 
eral acquiescence, both the ordinary and extraordi- 
nary powers of legislation are considered to be vested 
in the parliament of the nation. Acting in this ca- 
pacity of political sovereign of the nation, the British 
parliament can create rights, and can destroy existing 
rights at will ; although in exercising such acts of 
power, they proceed with great caution, and are care- 
ful to indemnify individuals, whose rights they may 
have injured. In this capacity it can, as it has done, 
new model the government. It can fix and alter the 
duration of parliaments, and change and limit the de- 
scent of the crown. Indeed, vested with this power, 
in addition to the ordinary powers of legislation, the 
figure is hardly too bold, by which, when acting on 
subjects within its authority, it is said to be omnipo- 
tent. Not so the congress of the United States. 
They possess not that transcendent power, that un- 
controllable sovereignty of the nation ; they possess 
the ordinary powers only of legislation, and these 
powers they derive under the constitution of the 
United States. By this instrument their powers are 
instituted, limited, and defined. This instrument is 
the act of the political sovereign, the people of the 
United States. To them it was proposed, and they 



144 LIFE OF NATHANIEL CHIPMAN. 

through their agents empowered for that purpose, 
enacted it the fundamental and supreme law of the 
national government. 

They have said, as they have a right to say on this 
subject, congress shall act ; or that they may act at 
their discretion. Here the congressional power is 
limited ; there is placed a barrier which shall not be 
passed. Congress, as I observed, possess not this 
paramount power ; but in one mode provided for alter- 
ing and amending the constitution, they are under 
certain restrictions, permitted an inceptive power. 
They have a right to originate proposals of amend- 
ments, which, when ratified by three fourths of the 
state legislatures, to whom the national sovereignty 
is, in this instance, referred, are adopted into, and 
become a part of that instrument. In another mode 
the state legislatures have the power of inceptions. 
They also may originate proposals of amendments, 
which congress must refer to a convention of the 
people for their ultimate acceptance and ratification. 
In this instance alone have the people of this coun- 
try reserved to themselves a portion of the national 
sovereignty, in the exercise of which only is found that 
voice of the people, which, because it is not to be 
resisted, is sometimes called the voice of God. This, 
sir, is the authority of the supreme law under which 
we act, the constitution of the United States, an au- 
thority indispensably binding. We have no right, 
when we wish to carry a favorite measure, to which 
we find some barrier opposed by the constitution, to 
prostrate or overleap that barrier. We have no right 
to say that the national sovereign, could it now be 



LIFE OF NATHANIEL CHIPMAN. 145 

consulted, would dispense with the limitation, would 
remove the barrier, which, in our present opinion, 
stands opposed to the public good. No, sir, we may 
not approach this ground. It is dangerous ; it is an 
usurpation of the national sovereignty. We are but 
agents of the nation, acting under a hmited author- 
ity. All our acts which exceed that authority are 
void. 

These are the principles to be applied in the inves- 
tigation of constitutional powers. Let us then ex- 
amine the constitution upon these principles, and 
fairly determine whether we are permitted the power 
for which it has been contended, the constitutional 
power to remove a judge, by abolishing the office, 
and, consequently, to deprive him of his salary ? The 
first provision which we find in the constitution re- 
lating to the judicial department, is in the second sec- 
tion, where, among other powers enumerated, it is 
declared that congress shall have power " to establish 
tribunals inferior to the supreme court." Upon this 
it was observed by the honorable gentleman from 
Georgia, (Mr. Jackson,) that this being a grant to 
congress of a legislative power to establish inferior 
courts, necessarily includes the power to repeal ; that 
this beiuir a first grant, cannot be restrained nor taken 
away by any subsequent provision in the constitution 
upon the same subject ; that we are to take the rule 
of construction, that the first grant, and the first 
words of a grantor in a deed, shall prevail over a 
subsequent grant, or subsequent words of a different 
import. Are we, indeed, sir, to apply in the con- 
struction of the constitution, the law, the supreme 



146 LIFE OF NATHANIEL CHIPMAN. 

law of the nation, the rules devised for the construc- 
tion of a deed, a grant, by which a few paltry acres 
are transferred from one individual to another ? No, 
sir, very different are the rules of construction. The 
first act of the grantor, but the last act of the legisla- 
ture shall prevail, or where, in any case, is the power 
to repeal ? Another rule more universally applica- 
ble, is, that you shall so construe a law that every 
part of it, if possible, may stand together ; that every 
part may have its operation. Thus, if there be a 
general provision in the former part of a law, and 
there follow a particular provision, which cannot take 
effect unless some part of the former provision be 
set aside, the latter shall be considered as a limita- 
tion of the former, and which shall be carried into 
effect so far only as it is not incompatible with the 
latter. 

In the third section of the constitution is a further 
provision, " that the judicial power of the United 
States shall be vested in one supreme court, and in 
such inferior courts as the congress may, from time 
to time, ordain and appoint." The highest judicial 
authority shall not be divided into two courts. It 
shall, to use a ruder phrase, be one and indivisible. 
I consider it as imperative to congress to establish, 
not only a supreme court, but also to establish some 
courts of inferior jurisdiction, which may be modified 
and extended, from time to time, as experience and 
future expediency shall dictate, so that it be without 
violence to any part of the constitution. The words 
" as congress may from time to time ordain and ap- 
point," were introduced with intent so far to give a 



1 



LIFE OF NATHANIEL CHIPMAN. 147 

discretion on the subject. The power of erecting 
courts is here taken for granted, as it is contained in 
the clause before cited, from the second section, sup- 
plied by the general clause by which it is declared 
that " congress shall have power to make all laws 
which shall be necessary and proper for carrying into 
effect all the powers vested by the constitution in the 
government of the United States, or in any officer 
or department of the government." I cannot under- 
stand it, for how is it possible so to understand it, 
that the words " may ordain and appoint," in their 
connection, imply also to abolish ? Certainly it is not 
a necessary implication. That congress are required 
to make a provision of inferior courts, that the thing 
is not merely optional, is very clear from another part 
of this section, declaring to what class the judicial 
authority of the United States shall be extended. 
(Read that part of the section.) Here observe, the 
supreme court has original jurisdiction in the smaller 
number only of the cases specified, so that without a 
provision of inferior courts there would be no pro- 
vision for the greater number, and the judicial au- 
thority, instead of being extended to all the cases enu- 
merated, would, in fact, be limited to a few only. 

Let us now examine the provision relating to the 
judges, which is contained in the former part of this 
section ; a provision intended to secure to the judges 
a proper degree of independence. It is declared that 
" the judges, both of the supreme court and infe- 
rior courts, shall hold their offices during good beha- 
vior." The judges of all the courts are placed on the 
same footing. The expression is not that they shall 



148 LIFE OF NATHANIEL CHIPMAN* 

continue in office, which might seem to be compul- 
sory, but shall hold their offices, implying, at their 
option, during good behavior. For a judge may re- 
sign, he may accept a place incompatible with the 
office of judge, as he may, on election, accept the 
place of senator or representative in congress, by 
which his office of judge would be vacated by his own 
act implying a resignation. The force of the expres- 
sion clearly is, that no judge, either of the supreme or 
inferior courts, so long as he continues to behave 
well, can be removed from the office, or the office 
removed from him by the act of any other. For the 
expression being general, with one only exception, in 
the nature of a proviso, that he continues to behave 
well, it is exclusive of every power, either to remove 
the judge from the office, or, as has been ingeniously 
indeed suggested, of removing the office from the 
judge, causing it to vanish from his hold on any other 
ground or pretence whatever. It is a well-known 
rule, that the expression of an exception in any pro- 
vision, excludes every other exception by implication. 
Next it follows, " and shall " (the judges shall) at 
stated times receive for their services a compensation 
which shall not be diminished during their continu- 
ance in office." How long shall they continue to 
receive, or be entitled to receive, an undiminished 
compensation or salary ? So long as they shall con- 
tinue to hold their respective offices. And how long 
are they entitled to hold their offices ? So long as 
they shall continue to behave well. That is, the du- 
ration of the time for which they shall be entitled to 
receive an undiminished salary, shall be equal to the 



LIFE OF NATHANIEL CHIPMAN. 149 

duration of the time for which they are entitled to 
hold their offices, equal to the duration of the time in 
which they shall continue to behave well. What 
rarely happens in subjects of this nature, the posi- 
tion that the judges cannot, during good behavior, 
without a direct violation of the constitution, be de- 
prived of their offices, or their salaries, is capable 
of the highest proof, not merely by a train of proba- 
ble and metaphysical reasoning, but by the clearest 
and plainest mathematical demonstration. It is a 
comparison of quantities in the duration of time ; 
or shall it now, for the first time, be said, that when 
one quantity, or one length of duration is equal to 
a second, and the second to a third, that nevertheless 
they are not equal to each other ? Have intuitive 
truths at length changed their nature ? Are they in 
these times converted to falsehood ? Have the clear- 
est axioms of ancient science suflered a revolutionary 
subversion ? No, sir, they remain the same ; they 
are still capable of assisting us to the same infallible 
conclusions. 

The honorable gentleman from Kentucky has told 
us, that if the construction against which he con- 
tended had been contemplated by the framers of the 
constitution, it would have been explicitly declared, 
that the judges shall hold their offices and salaries 
during good behavior, fairly admitting that a declara- 
tion, thus explicit, would have been conclusive for 
the construction of his opponent. Surely it will not 
be contended that the idiom of the English lanjiuaire 
is so inflexible, and its interpretation so precise, that 
identical positions to be equally clear and explicit, 

19 



150 LIFE OF NATHANIEL CHIPMAN. 

can be expressed by identical words and phrases 
only. Had the expression been, they should hold 
their offices and receive their salaries during good 
behavior, would not the meaning have been the same 
and equally expressive ? Indeed, the word hold^ 
though well applied to an office, is not very properly 
applied to taking the payment of a salary. Or had it 
been " they shall hold their offices during good be- 
havior and while they continue in office, which is to 
be during good behavior, they shall continue to re- 
ceive their salaries, which shall not, during that time, 
be diminished," it certainly would have been a decla- 
ration equally explicit with that suggested by the gen- 
tleman. And this, it has been clearly and demonstra- 
bly proved, is the same as that which is expressed in 
the constitution. 

I will here, sir, though it might, perhaps, have been 
more properly done before, make a few observations 
on the independence of the judiciary. It has been 
said by some gentlemen, in effect, that though the 
judges ought to be independent of the executive, 
though they ought not to hold their offices or sala- 
ries, dependent on the will of the president, yet, in a 
government like ours, there can be no reason why 
they should not, like the other departments of the 
government, be dependent on public opinion, and on 
congress, as properly representing that opinion ; that 
if the judges are made thus independent, if congress 
cannot remove them by abolishing their offices, or in 
any other way except that of impeachment for mis- 
behavior, they will become a dangerous body in the 
state ; they may by their discussions on the consti- 



LIFE OF NATHANIEL CHIPMAN. 151 

tutionality of a law, obstruct the most important 
measures of government for the pubUc good. 

Unfortunately for the argument, this doctrine agrees 
neither with the nature of our government, which is 
not vested with the unlimited national sovereignty, 
but from that derives its powers, nor with the posi- 
tive and solemn declaration of the constitution. The 
constitution is a system of powers, limitations and 
checks. The legislative power is there limited, with 
even more guarded caution than the executive ; be- 
cause not capable of a check by impeachment, and 
because it was apprehended, that left unlimited and 
uncontrolled, it might be extended to dangerous en- 
croachments on the remaining state powers. But to 
what purpose are the powers of congress limited by 
that instrument ? To what purpose is it declared to 
be the supreme law of the land, and as such, binding 
on the courts of the United States, and of the several 
states, if it may not be applied to the derivative laws 
to test their constitutionality ? Shall it be only called 
in to enforce obedience to the laws of congress, in op- 
position to the acts of the several states, and even to 
their rightful powers ! Such cannot have been the 
intention. But, sir, it will be in vain long to expect 
from the judges, the firmness and integrity to oppose 
a constitutional decision to a law, either of the na- 
tional legislature, or to a law of any of the powerful 
states, unless it should interfere with a law of con- 
gress, if such a decision is to be made at the risk of 
office and salary, of public character and the means 
of subsistence. And such will be the situation of 
your judges, if congress can, by law, or in any other 



152 LIFE OF NATHANIEL CHIPMAN. 

way, except by way of impeachment, deprive them of 
their offices and salaries on any pretence whatever. 
For it will be remembered, that the legislative powers 
of the several states, as well as those of congress, are 
limited by the constitution. 

For instance, they are prohibited, as well as con- 
gress, to pass any bill of attainder, or ex post facto 
law. The decisions of the judges upon such laws, and 
such decision, they have already been called upon to 
make, may raise against them, even in congress, the 
influence of the most powerful states in the union. 
In such a situation of the judges, the constitutional ^ 

limitation on the legislative powers can be but a dead 
letter. Better would it be they were even expunged. 

Thus, sir, it appears that the independence of the 
judges, even of congress, in their legislative capacity, 
is agreeable to the nature of our government, to the 
whole tenor as well as the express letter of the con- 
stitution. But, sir, at this late stage of the debate, I 
will not further enlarge ; 1 will only add, that upon 
these principles, and with these views of the subject, 
I shall give a hearty negative to the resolution on 
your table. 



CHAPTER VIII. 

Represented the town of Tinmouth, in the Legislature, for several 
years — Elected one of the Council of Censors, who proposed Amend- 
ments to the Constitution, and published the "Constitutionalist" in 
support of the Amendments. 

After the expiration of his senatorial term of six 
years, Judge Chipman returned to the practice of 
law, not having an office, but attending to important 
cases in the different counties. He represented the 
town of Tinmouth in the legislature, in the years 
1806, 1807, 1808, 1809 and 1811. In March, 1813, 
he was elected one of the council of censors — a 
council consisting of thirteen persons elected by a 
general ticket, at the expiration of every seven years, 
vested with certain censorial powers, and whose duty 
it is to examine the constitution, and if they find it 
defective, to propose such amendments as they shall 
judge will improve it, and to call a convention to con- 
sider such amendments, and to adopt or reject each 
amendment so proposed. 

Nathaniel Chipman had ever considered the con- 
stitution to be defective, and had a strong desire to 
have it amended by the constitution of the senate, as 
a coordinate branch of the legislature — by taking 
the power of appointment from the legislature and 
vesting it in a board less liable to a corrupt and cor- 



I 



154 LIFE OF NATHANIEL CHIPMAN. 

rupting influence, by providing for the appointment 
of the judges of the supreme court during good beha- 
vior, and by constituting a court of chancery distinct 
from the courts of law. His experience on the bench 
of the supreme court led him to remark, that for a 
judge at the same term to turn his attention to the 
trial of issues of fact and issues of law, and to cases 
in chancery, required a versatility of talent which fell 
to the lot of no human being. 

This council of censors, to say the least, comprised 
as much learning, talents, and practical good sense 
as any one of the numerous councils which have been 
elected. They proposed the amendments to the con- 
stitution above-named, and called a convention to de- 
cide upon their adoption or rejection agreeably to the 
anomalous provision of our constitution. 

In support of the proposed amendments, in addi- 
tion to their address to the people, they published a 
pamphlet entitled, " The Constitutionalist, or Amend- 
ments of the Constitution, prepared by the Council 
of Censors, supported by the Writings and Opinions 
of James Willson, L.L. D., late one of the associate 
judges of the Supreme Court of the United States, 
and Professor of Law in the College of Philadelphia ; 
also, by the Writings and Opinions of other Emi- 
nent Citizens of the United States. With Explana- 
tory Notes of modern date. The only skill and 
knowledge of any value in politics, is that of govern- 
ing all by all." HeracUtus, in Sir W. Temple's Mis- 
cellany. 

The first amendment, dividing the legislature, by 
constituting a senate as a coordinate branch, having 



LIFE OF NATHANIEL CHIPMAN. 155 

in the year 1836 been adopted, there is in every state 
in the union, as well as in the government of the 
United States, a senate or council made a coordinate 
branch of the legislature. And since experience has 
proved the utility, and even necessity of such divi- 
sion of the legislature, any further discussion of the 
subject appears useless, I therefore omit the said 
amendment, and extract from the pamphlet, the other 
proposed amendments, with the authorities and argu- 
ments in support of them, as follows : 

Art. 14. In addition to the powers herein before- 
mentioned, and the ordinary powers and duties of the 
executive, prescribed by the constitution and laws of 
this state, the governor shall nominate, and by and 
with the advice and consent of the senate, appoint 
all judges in the courts of law and chancery, judges 
of probate, sheriffs, high bailiffs, justices of the peace, 
and major and brigadier generals. And also, in like 
manner, shall nominate and appoint all other officers 
for whose appointment provision shall not be other- 
wise made by law or this constitution. 

15. The representatives of the several counties 
shall, at every session of the legislature, from time to 
time, in county convention, recommend to the gover- 
nor suitable persons to be appointed justices of the 
peace in the several towns in their respective coun- 
ties, when such appointments shall be necessary. And 
shall, in like manner, when the appointment of a 
sheriff" or high bailiff^ shall be necessary in any county, 
recommend two suitable persons for each or either of 
said offices, as the case may be ; and the governor 



156 LIFE OF NATHANIEL CHIPMAN. 

shall nominate to each office respectively, one of the 
two persons recommended. 

18. There shall be established in this state a court 
of chancery, distinct from the courts of law, with 
general jurisdiction in causes properly determinable 
in equity. 

19. The chancellor shall hold his office on the 
same tenure, and be removable in the same manner, 
as is provided in the case of judges of the supreme 
court ; and shall in hke manner be secured in his 
compensation. 

20. The judges of the supreme court shall hold 
their offices, respectively, during good behavior ; they 
shall, nevertheless, be removed from their respective 
offices, by a resolution of the senate and house of 
representatives, assigning reasons for such removal ; 
and concurred in by a majority of two-thirds of each 
house. 

The reasons of our prejudices against the executive and 
judicial powers, explained. 

" Habits contracted before the late revolution of 
the United States, operate in the same manner since 
that time, though very material alterations may have 
taken place in the objects of their operations. Be- 
fore that period, the executive and the judicial pow- 
ers of government were placed neither in the people, 
nor in those, who professed to receive them under the 
authority of the people. They were derived from a 
different and a foreign source ; they were regulated 
by foreign maxims; they were directed to foreign 
purposes. Need we be surprised that they were 



LIFE OF NATHANIEL CHIPMAN. 157 

objects of aversion and distrust ? Need we be sur- 
prised that every occasion was seized for lessening 
their influence and weakening their energy ? On the 
other hand, our assembhes were chosen by ourselves. 
They were the guardians of our rights, the objects of 
our confidence, and the anchor of our political hopes. 
Every power which could be placed in them was 
thought to be safely placed ; every extension of that 
power was considered as an extension of our own 
security. 

At the revolution, the same fond predilection and 
the same jealous dislike existed and prevailed. The 
executive and the judicial, as well as the legislative 
authority, was now the child of the people ; but to 
the two former the people behaved like step- mothers. 
The legislature was still discriminated by excessive 
partiality ; and into its lap every good and precious 
gift was profusely thrown. Even at this time people 
can scarcely divest themselves of those opposite pre- 
possessions ; they still hold the language which ex- 
presses them, though, perhaps, they do not perceive 
the delusive mistake. In observations on this sub- 
ject, we hear the legislature mentioned as the peopled 
representatives. The distinction intimated by impli- 
cation, though probably not avowed upon reflection, 
is, that the executive and judicial powers are not con- 
nected with the people by a relation so strong, or 
near, or dear. But it is high time that we should 
chastise our prejudices ; and that we should look 
upon the diftcrent parts of government with a just 
and impartial eye. The executive and judicial pow- 
ers are now drawn from the same source, are now 

20 



158 LIFE OF NATHANIEL CHIPMAN. 

animated by the same principles, and are now directed 
to the same ends with the legislative authority ; they 
who execute, and they who administer the laws, are 
as much the servants, and therefore, as much the 
friends of the people as they who make them. The 
character and interest and glory of the two former 
are as intimately and as necessarily connected with 
the happiness and prosperity of the people, as the 
characters, and interests, and glory of the latter are. 
Besides the execution of the law and the administra- 
tion of justice under the law, bring it home to the for- 
tunes, and farms, and houses, and business of the 
people. Ought the executive or the judicial magis- 
trates, then, to be considered as foreigners ? Ought 
they to be treated with a chilling indifference. 1 Wil- 
son's Works, 398, 899. 

The Executive Power. 

The council of censors observe, that, " it is too ob- 
vious to need proof, that bodies of men are unstable 
in proportion as they are numerous ; and conduct 
without due consideration and regard to the public 
interest in proportion as their responsibility is shared 
by numbers. We have, therefore, thought it advisa- 
ble to confer the power of nomination to office on 
the governor, who, by his annual election, is imme- 
diately responsible to the people ; and the power of 
controlling appointments to office in pursuance of his 
nomination, on the senate, the less numerous branch 
of the legislature. The council hope, by these means, 
to leave the choice of the members of the legisla- 
ture more free from the influence of designing men, 



LIFE OF NATHANIEL CHIPMAN. 159 

who may often promote the election of individuals, in 
order that themselves, in their turn, may be pro- 
moted. And also to relieve the legislature itself from 
the corrupting influence of a too frequent exercise of 
the power of appointment, as well as to save much 
time of the legislature and expense to the state, now 
wasted in the present mode of electing ofiicers." 
Judge Wilson, speaking on this subject, says — "the 
executive as well as the legislative power ought to be 
restrained. But there is a remarkable contrast be- 
tween the proper modes of restraining them. The 
legislature, in order to be restrained, must be divided. 
The executive power, in order to be restrained, should 
be one. Unity in this department is at once a proof 
and an ingredient of safety and of energy in the ope- 
rations of government. 

" The restraints on the legislative authority must, 
from its nature, be chiefly internal ; that is, they must 
proceed from some part or division of itself. But 
the restraints on the executive power are external. 
These restraints are applied with greatest certainty, 
and with greatest efficacy, when the object of restraint 
is clearly ascertained. This is best done when one 
object only, distinguished and responsible, is conspic- 
uously held up to the view and examination of the 
public. 

"In planning, forming, and arranging laws, delib- 
eration is always becoming, and always useful. But 
in the active scenes of government there are emer- 
gencies in which the man, as, in other cases, the 
woman, who deliberates, is lost. Secrecy may be 
equally necessary as despatch. But can either secrecy 



160 LIFE OF NATHANIEL CHIPMAN. 

or despatch be expected when, to every enterprise, 
and to every step in the progress of every enterprise, 
mutual communication, mutual consultation, and mu- 
tual agreement, among men, perhaps of discordant 
views, of discordant tempers, and of discordant inter- 
ests, are indispensably necessary ? How much time 
will be consumed ; and when it is consumed, how little 
business will be done ? When the time is elapsed ; 
when the business is unfinished ; when the state is in 
distress, perhaps, on the verge of destruction ; on whom 
shall we fix the blame ? Whom shall we select as the 
object of punishment ? Ruinous dissensions are not 
the only inconveniences resulting from a numerous 
executive body ; it is equally liable to pernicious and 
intriguing combinations. When the first takes place, 
the public business is not done at all ; when the last 
takes place, it is done for mean or malicious pur- 
poses. 

" The appointment to office is an important part 
of the executive authority. Much of the ease, much 
of the reputation, much of the energy, and much 
of the safety of the nation depends on judicious and 
impartial appointments. But are impartiality and fine 
discernment likely to predominate, in a numerous ex- 
ecutive body ? In proportion to their own number 
will be the number of their friends, favorites, and de- 
pendents. An office is to be filled. A person nearly 
connected by some of the foregoing ties with one of 
those who are to vote in filling it, is named as a can- 
didate. His patron is under the necessity to take any 
part, particularly responsible in his appointment. He 
may appear even cold and indiffisrent on the occasion. 



LIFE OF NATHANIEL CHIPMAN. 161 

But he possesses an advantage, the value of which is 
well understood in bodies of this kind. Every mem- 
ber who gives, on his account, a vote for his friend, 
will expect the return of a similar favor on the first 
convenient opportunity. In this manner a reciprocal 
intercourse of partiality, of interestedness, of favorit- 
ism, perhaps of venality, is established ; and in no par- 
ticular instance is there a practicability of tracing the 
poison to its source. Ignorant, vicious and prosti- 
tuted characters are introduced into office ; and some 
of those who voted, and procured others to vote for 
them, are the first and loudest in expressing their as- 
tonishment, that the door of admission was ever opened 
to men of their infamous description. The suflTcring 
people are thus wounded and bulTeted, like Homer's 
Ajax in the dark, and have not even the melancholy 
satisfaction of knowing by whom the blows are given. 
Those who possess talents and virtues, which would 
reflect honor on ofiice, will be reluctant to appear 
as candidates for appointments. If they should be 
brought into view, what weight will virtue, merit and 
talents for office have, in a balance held and poised 
by partiality, intrigue and chicane ? 

" The person who nominates or makes appoint- 
ments to office should be known. His own office, 
his own character, his own fortune should be respon- 
sible. He should be alike unfettered and unshel- 
tered by counsellors. No constitutional stalking-horse 
should be provided for him, to conceal his turnings 
and windings, when they are too dark and too crook- 
ed to be exposed to public view. Instead of the dis- 
honorable intercourse, which I have already men- 



162 LIFE OF NATHANIEL CHIPMAN. 

tioned, an intercourse of a very different kind should be 
established — an intercourse of integrity and discern- 
ment, on the part of the magistrate who appoints, and 
of gratitude and confidence on the part of the people, 
who will receive the benefit from his appointments. 
Appointments made and sanctioned in this highly re- 
spectable manner, will, like a fragrant and beneficent 
atmosphere, diffuse sweetness and gladness around 
those to whom they are given. Modest merit will be 
beckoned to, in order to encourage her to come for- 
ward. Barefaced impudence and unprincipled in- 
trigue will receive repulse and disappointment, de- 
servedly their portion. 

" If a contrary conduct should unfortunately be 
observed, and unfortunately, a contrary conduct will 
be sometimes observed, it will be known by the citi- 
zens whose conduct it is ; and, if they are not seized 
with the only distemper incurable in a free govern- 
ment — the distemper of being wanting to them- 
selves — they will, at the next election, take effectual 
care that the person who has once shamefully abused 
their generous and unsuspecting confidence, shall not 
have it in his power to insult and injure them a second 
time by the repetition of such an ungrateful return. 

" The observations, which I have made on the 
appointments to office, will apply, with little varia- 
tion, to the other powers and duties of the executive 
department. 

" If the executive power of government is placed 
in the hands of one person, who is to direct all the 
subordinate offices of that department, is there not 
reason to expect, in his plans and conduct, prompt- 



LIFE OF NATHANIEL CHIPMAN. 163 

itiide, activity, firmness, consistency and energy? 
These mark the proceedings of one man ; at least, of 
one man fit to be intrusted with the management of 
important pubhc aflairs. May we not indulge, at least 
in imagination, the pleasing prospect, that this one 
man — the choice of those who are deeply interested 
in a proper choice — will he a man distinguished for 
his abilities ? "Will not those abilities pervade every 
part of his administration ? Will they not diffuse their 
animating influence over the most distant corners of 
the nation ? May we not further indulge the pleas- 
ing imagination, in the agreeable prospect — in one 
instance, at least, it is realized by experience — that 
the public choice will fall upon a man, in whom dis- 
tinguishing abilities will be joined, and sublimed by 
distinguished virtues — on a man, who, on the neces- 
sary foundation of private character, decent, respect- 
ed and dignified, will build all the great, and honest, 
and candid qualities, from which an elevated station 
derives its most beautiful lustre, and public life its 
most splendid embellishments ? 

" If these pleasing prospects should unhappily be 
blasted by a preposterous choice, and by a prepos- 
terous conduct of the magistrate chosen, still, at the 
next election, an effectual remedy can be applied to 
the mischief; and this remedy will be applied effect- 
ually, unless, as has been already intimated, the citi- 
zens should be wanting to themselves. For a people 
wanting to themselves, there is indeed no remedy in 
the political dispensary. From their power there is 
no appeal ; to their error, there is no superior princi- 
ple of correction." 1 Wilson's Works, 400-404. 



164 LIFE OF NATHANIEL CHIPMAN. 

Note 1. 

1. I will examine this subject further. By art. 2, 
sec. 2, of the federal constitution, the president " shall 
nominate, and by and with the advice and consent of 
the senate, shall appoint ambassadors, other public 
ministers, and consuls ; judges of the supreme court, 
and all other officers of the United States, whose ap- 
pointments are not herein otherwise provided for, and 
which shall be established by law." 

If we compare this with the 14th article of the 
amendments, we find a likeness in the manner of ap- 
pointing officers ; the president nominates, and by and 
with the advice and consent of the senate appoints ; so 
does the governor. The president appoints officers 
in every state ; the governor appoints in this state. 
Would the president, who resides in the city of Wash- 
ington, be likely to know who are qualified to be 
attorney and marshal in Vermont district as well as 
the governor, who resides here, would know, who 
are qualified to be sheriffs and high-bailifls, in the sev- 
eral counties ? No. This, then, is a reason why the 
governor should rather be entrusted to nominate 
sherifts and high-bailifis, than the president to nomi- 
nate the attorney and marshal. The governor's means 
of information are better, therefore he would be 
more likely to nominate suitable persons. If all our 
representatives in congress should unitedly recom- 
mend A. to the president as a suitable person to be 
appointed attorney or marshal of this district, would 
the president be obliged to nominate him ? No. The 
federal constitution does not require it. But if the 



LIFE OF NATHANIEL CHIPMAN. 1G5 

representative of a county, in county convention, re- 
commend A. and B. as suitable persons to be sberitl", 
in their county, the governor, by the latter part of 
the 15th article of the amendments, is obliged to 
nominate one of them to the senate for the office. 
So it is as to high-bailiff. Here, then, we see restric- 
tions laid upon the governor that are not upon the 
president. ^Ve will now attend to the former part of 
the 15th article, namely: "The representatives of 
the several counties shall, at every session of the legis- 
lature, from time to time, in county convention, re- 
commend to the governor suitable persons to be ap- 
pointed justices of the peace in the several towns in 
their respective counties, when such appointments 
shall be necessary." This clause shows it to be not 
only the duty but the right of the representatives of 
such county to recommend to the governor suitable 
persons to be appointed justices of the peace. Right 
and obligation are reciprocal ; that is, wherever there 
is a right in one or more persons, there is a corres- 
ponding obligation, either express or implied. Here 
the representatives have a constitutional right to re- 
commend suitable persons — to whom ? to the gover- 
nor. Now it is absurd, to suppose the governor is 
not under obligation to regard such recommendation 
in making his nomination to the senate. It is not, 
however, to be understood that the governor, who is 
responsible to the people, has no voice in this busi- 
ness. He is to exercise a sound discretion, and if he 
find that the representatives, in convention, have re- 
commended an unsuitable person for the office, he 
will say that they iiad not a right to do it, and he is 

21 



166 LIFE OF NATHANIEL CHIPMAN. 

not obliged to regard such recommendation. Some 
may object, that these county conventions will fetter 
and shelter the governor too much with council- 
lors ; that they will serve as a constitutional stalking- 
horse to conceal his turnings and windings. There 
is weight in the objection. The governor, if inquired 
of why he appointed such and such persons, sheriff^, 
high-bailiff, and justices, may answer that they were 
recommended to him by the representatives of the 
county in county convention ; still I believe there is 
a propriety in having county conventions to recom- 
mend. It is what we have been accustomed to with 
this variation ; that instead of carrying their recom- 
mendations to the joint committee of both houses, they 
lay them before the governor, and he lays them be- 
fore the senate. If, on close examination, the per- 
sons recommended are found suitable for the offices, 
they will be appointed ; otherwise, not. It is hoped 
that the people will receive some benefit from this 
variation ; that the characters and qualifications of per- 
sons recommended by conventions will be more thor- 
oughly inquired into by the governor and senate than 
they have heretofore been by the joint committee of 
both houses. Even if an unsuitable person should be 
recommended to the governor, and the governor 
should nominate him to the senate, it is expected 
that the senate, if they know the person to be unsuit- 
able, will withhold advice and consent to his appoint- 
ment to office. With so much caution — and there 
cannot be too much caution — persons who cannot 
read and write, and persons of bad moral character, 
>vill not likely be appointed justices of the peace ; 



LIFE OF NATHANIEL CHIPMAN. 1G7 

some such have heretofore been appointed (incau- 
tiously) by the joint committee of both houses. 

Again, if a known bankrupt should induce the 
representatives of his county to agree on him for a 
sheriff, and, in county convention, they should recom- 
mend him to the governor for the office, the governor 
would not be likely to nominate him to the senate, or 
if he did, the senate would not be likely to give their 
advice, and consent to his appointment. But, how 
often such persons have been appointed sheriffs by the 
joint committee of both houses, not only to the dam- 
age of individuals, but to the injury of the state. 

If the representatives of each county, in county 
convention, can recommend suitable persons to be 
appointed sheriff, high-bailiir, and justices of the 
peace in their respective counties, and this recom- 
mendation is obligatory on the governor to nominate 
them to the senate, why need the representatives 
complain because the appointment does not ulti- 
mately depend upon them ? If they can have the 
very men they recommend, what more do they want? 
Do they wish unsuitable persons to be' appointed, in 
case they should happen to recommend some to the 
governor ? 

If the governor and senate are as much the ser- 
vants, therefore, as much the friends of the people as 
the representatives are, why should the people be un- 
willing to trust them to give a final vote in the choice 
of their officers r It is said by Judge Wilson, that 
" the character and interest and glory of the governor 
and senate are as intimately and necessarily con- 
nected with the happiness and prosperity of the peo- 



168 LIFE OF NATHANIEL CHIPMAN. 

pie as the character, and interest, and glory of the 
representatives are." Why then not trust them as 
soon ? Is it because they are fewer in number than 
the representatives ? Do wisdom and patriotism con- 
sist in numbers ? If so, then double the number of 
your representatives, and you double their wisdom 
and patriotism. 

This would be a fortunate thing for the people — 
more wisdom and more patriotism in that branch 
would do us no harm. But wisdom and patriotism 
do not consist in numbers, and it is hoped that as 
much of these will fall to the share of the governor 
and senate as the other branch of the legislature, and 
that they will be more competent to appoint suitable 
persons to fill the aforesaid offices. 

As to the more important offices, which do not con- 
cern one county more than another, it seems highly 
proper that the governor should nominate suitable 
persons to fill them. 

Note 2. 

The provision contained in the 14th article of the 
amendments, which empowers the governor to nomi- 
nate, and by and with the advice and consent of the 
senate, appoint all judicial officers, &c., is founded 
upon principles which are unquestionable in their na- 
ture, and in strict conformity to the common sense 
and reason of mankind. Yet it is to be feared, that 
passion may triumph over reason, and good sense be 
forced to yield to inveterate prejudice. We know 
that habits, once formed and become familiar, are 
not easily laid aside. It may be difficult to per- 



LIFE OF NATHANIEL CHIPMAN. 169 

suade those who have been, or expect to be, mem- 
bers of the house of representatives, to transfer from 
that body a power, to the use of which its members 
have been so long accustomed, and which they have 
found to be, in their hands, such efficient means of 
self-aiji?randizement. We have no hesitation in de- 
daring the opinion, that the power of appointment to 
office could not have been placed in more improper 
hands than it is by the present constitution. To the 
existing mode it would indeed be preferred, much 
preferred, that the power of appointment of the judges 
of the supreme court should be exercised by the peo- 
ple at large, and of the judges of the county court 
by the people of the several counties. This method 
would, at least, give an opportunity to examine the 
characters and canvass the qualifications of the sev- 
eral candidates for these offices, and, if the people 
would be governed in their choice by party views and 
prejudices, they would, nevertheless, be free from the 
combined influence of corrupt and selfish motives. 
As to the degree of responsibility the people might 
feel for the fidelity and ability of these officers, we 
admit it would probably not be greater, nor could it 
be less, than what is now felt by the members of the 
house of representatives. 

Judicial Power. 

The council of censors observe, in their address, 
that " the frequent election of the judges of the courts 
of law and chancery, it is believed, must unavoidably 
have a tendency to make them feel dependent on 
their electors, and other influential members of so- 



170 LIFE OF NATHANIEL CHIPMAN. 

ciety ; and to prevent the unbiased exercise of their 
opinions in the decision of causes between men high 
in office or influence, and the members of the lower 
and more ordinary classes of society, and thereby cor- 
rupt the fountain as well as the streams of justice. 
The members of the council, therefore, thought it 
their duty to devise and recommend an amendment of 
the constitution, rendering the judiciary so far inde- 
pendent as to place them above the influence of pop- 
ular party or personal motives ; and yet liable to re- 
moval for reasonable objections, which do not amount 
to cause of impeachment. They have, therefore, 
proposed so to amend the constitution as to have 
them appointed during good behavior, yet removable 
by the resolution of both houses of the legislature, 
passed by two-thirds of the members of each, as be- 
ing the best medium between absolute independence 
and an entire dependence on the representatives of 
the people. The ordinary judges of the courts of 
common jurisdiction, it has been thought expedient, 
should hold their offices for the term of five years, 
removable in the same manner. Chancery powers 
cannot, from their nature, be accurately defined or 
limited, and are, therefore, in some measure dan- 
gerous ; yet, when reduced to system by practice and 
prudence, highly useful, important and necessary. 
The inconvenience of the exercise of these powers 
by the judges of a court of common law jurisdiction, 
has been unhappily experienced by the suitors in our 
courts. Great delay in causes in chancery have been 
occasioned by want of time, and hurry of business on 
the law side of the court. Necessary rules and orders 



LIFE OF NATHANIEL CHIPMAN. 171 

for bringing causes to a hearing and decision cannot 
be adopted and maintained in our present system, 
and the unavoidable precipitancy in tlie proceedings, 
forbids the expectation of the attainment of correct 
decisions by the proper discussion of the parties and 
the dehberation of the court. The council has, there- 
fore, recommended the establishment of a court, with 
chancery powers, distinct from the courts of law. 

In reasoning upon this subject. Judge Wilson says: 

" The third great division of the powers of govern- 
ment is the judicial authority. It is sometimes con- 
sidered as a branch of the executive power, but inac- 
curately. When the decisions of courts of justice are 
made, they must, it is true, be executed ; but the 
power of executing them is ministerial, not judicial. 
The judicial authority consists in applying, according 
to the principles of right and justice, the constitution 
and laws to facts and transactions in cases in which 
the manner or principles of this application are dis- 
puted by the parties interested in them. 

" The very existence of a dispute is presumptive 
evidence, that the application is not altogether with- 
out intricacy or difficulty. When intricacy or diffi- 
culty takes place in the application, it cannot be pro- 
perly made without the possession of skill in the 
science of jurisprudence, and the most unbiased be- 
havior in the exercise of that skill. Clear heads, 
therefore, and honest hearts are essential to good 
judges. 

" As all controversies in the community respecting 
life, liberty, reputation and property must be influ- 
enced by their judgments, and as their judgments 



172 LIFE OF NATHANIEL CHIPMAN. 

ought to be calculated not only to do justice, but also 
to give general satisfaction, to inspire general confi- 
dence, and to take even from disappointed suitors — 
for in every cause disappointment must fall on one 
side — the slightest pretence of complaint ; they 
ought to be placed in such a situation as not only to 
be, but likewise to appear superior to every extrinsic 
circumstance, which can be supposed to have the 
smallest operation upon their understandings or their 
inclinations. In their salaries, and in their offices, 
they ought to be completely independent ; in other 
words, they should be removed from the most distant 
apprehension of being effected, in their judicial char- 
acter and capacity, by anything except their own be- 
havior and its consequences. 

" We are," says a very sensible writer on political 
subjects, " to look upon all the vast apparatus of 
government as having ultimately no other object or 
purpose but the distribution of justice. All men are 
sensible of the necessity of justice to maintain peace 
and order, and all men are sensible of the necessity 
of peace and order for the maintenance of society."^ 
" The pure, and wise, and equal administration of the 
laws," says Mr. Paley,- " forms the first end and bless- 
ing of social union." But how can society be main- 
tained ; how can a state expect to enjoy peace and 
order unless the administration of justice is able and 
impartial ? Can such an administration be expected, 
unless the judges can maintain dignified and inde- 
pendent characters ? Can dignity and independence 

' Hume's Essay, 35. » 2 Paley, 285. 



LIFE OF NATHANIEL CHIPMAN. 173 

be expected from judges who are liable to be tossed 
about by every veering gale of politics, and who can 
be secured from destruction only by dexterously swim- 
ming along with every successive tide of party ? Is 
there not reason to fear, that in such a situation the 
decisions of courts w^ould cease to be the voice of 
law and justice, and would become the echo of fac- 
tion and violence ? 

" This is a subject that most intimately concerns 
every one who sets the least value upon his own 
safety, or that of his posterity. Our fortunes, our 
lives, our reputations, and our liberties are all liable 
to be affected by the judgments of the courts. How 
distressing and melancholy must the reflection be, that 
while judges hold their salaries only at pleasure, and 
their commissions only for the term of a few years, 
our liberties, our fortunes, our reputations and our 
lives may be sacrificed to a party, though we have 
done nothing to forfeit them to the law." 1 Wilson's 
Works, 405-407. 

I might here, with great propriety, quote from the 
book called The Federalist, written by Messrs. Madi- 
son, Hamilton and Jay, their sentiments respecting 
independency in the judiciary, were it not for swelling 
this work beyond its intended size. They wrote after 
the convention had recommended the federal consti- 
tution, and before its adoption, in favor of the princi- 
ples contained in that instrument. A single passage 
will be enough to show their sentiments on this point. 
They say, " Upon the whole, there can be no room 
to doubt that the convention acted wisely in copying 
from the models of those constitutions which have 

22 



174 LIFE OF NATHANIEL CHIPMAN. 

established good behavior as the tenure of judicial 
offices, in point of duration ; and, that so far from 
being blamable on this account, their plan would 
have been inexcusably defective, if it had wanted this 
important feature of good government." 

We learn Mr. Jefferson's sentiments on this sub- 
ject by looking into his proposed constitution for Vir- 
ginia. There we find him to say, that " the judges 
of the high court of chancery, general court" of 
common law, " and courts of admiralty, should be ap- 
pointed, &c. and to hold their offices during good 
behavior. ^^ ^ He would have them removable only by 
impeachment. 

Note 3. 

I now propose to examine the constitutions of the 
several states in relation to the judiciary department. 
And this examination will, I think, not only remove 
all scruples as to the republicanism of an inde- 
pendent judiciary, but also aflbrd some testimony in 
favor of its establishment in Vermont. The institu- 
tions of other states, approved by many years experi- 
ence, by all political parties, are surely entitled to some 
consideration. We cannot doubt but that the framers 
of these constitutions had solely the security of the 
rights of the people in view, not the aggrandizement 
of any person or party. That there should be differ- 
ences of opinion, on various points, is not extraordi- 
nary. But that all the states which have formed 
constitutions, should have so nearly agreed on the 

' Jefferson's Notes, 299. 



LIFE OF NATHANIEL CHIPMAN. 1 75 

subject of the independence of the judiciary, would 
certainly be extraordinary, if there was nothing in 
its principle favorable to the impartial administration 
of justice, and to the security of the rights of the 
people. 

New Hampshire. — "All judicial officers duly ap- 
pointed, commissioned, and sworn, shall hold their 
offices during good behavior, excepting those con- 
cerning whom there is different provision made in 
this constitution. Provided, nevertheless, the gover- 
nor, with consent of council, 'inay remove them upon 
the address of both houses of the legislature. No 
person shall hold the office of judge of any court after 
he has attained the age of seventy years." (Adopted 
1792.) 

Massachusetts. — Chap. 3, art. 1. " All judicial offi- 
cers, duly appointed, commissioned and sworn, shall 
hold their offices during good behavior, excepting 
such concerning whom there is different provision 
made in this constitution. Provided, nevertheless, 
the governor, with the consent of the council, may 
remove them upon the address of both houses of the 
legislature." (Adopted 1780.) 

Rhode Island This state has formed no consti- 
tution. The charter of Charles II. forms the basis of 
its government. Under that their judges are annually 
elected, and their courts are such as might be ex- 
pected. 

Connecticut. — This state has formed no constitu- 
tion. Their judges, though chosen annually, are, in 
practice, appointed during good behavior. In this 
state there has been no change of parties. But 



176 LIFE OF NATHANIEL CHIPMAN. 

should parties fluctuate as in Rhode Island, the same 
fate would probably await their judges, unless the 
spirit of party should be contracted by the steady 
habits peculiar to the state of Connecticut. The fol- 
lowing is the third section of the fifth article of the 
constitution of Connecticut, adopted in the year 1818. 

The judges of the supreme court of errors, of the 
superior and inferior courts, and all justices of the 
peace, shall be appointed by the general assembly, in 
such manner as shall by law be prescribed. The 
judges of the supreme court and of the superior court 
shall hold their offices during good behavior ; but may 
be removed by impeachment ; and the governor shall 
also remove them on the address of two-thirds of the 
members of each house of the general assembly. 
All other judges and justices of the peace shall be 
appointed annually. No judge or justice shall hold 
his office after he shall arrive at the age of seventy 
years. 

New York. — Art. 24 (ordains) " That the chan- 
cellor, the judges of the supreme court, and first judge 
of the county court in every county, shall hold their 
offices during good behavior, or until they shall 
have respectively attained the age of sixty years." 
They are removable only by impeachment. Adopted 
1777. 

Neiv Jersey. — Art. 12. " The judges of the su- 
preme court shall continue in office for seven years ; 
the judges of the inferior court of common pleas, &:c. 
vshall continue in office for five years." They are re- 
movable only by impeachment. Adopted 1776. 

Pennsylvania. — Art. 5, sec. 2. " The judges of the 



LIFE OF NATHANIEL CHTPMAN. 177 

stipreme court, and of the several courts of common 
pleas, shall hold their offices during good behavior. 
But for any reasonable cause, which shall not be 
sufficient ground for impeachment, the governor may 
remove any of them on the address of two-thirds of 
each branch of the legislature. Adopted 1790. 

Delaware. — Art. 6, sec. 2. " The chancellor and 
judges of the supreme court and the courts of com- 
mon pleas, shall hold their offices during good beha- 
vior. But for a reasonable cause, which shall not be 
a sufficient ground for impeachment, the governor 
may, in his discretion, remove any of them, on the 
address of two-thirds of all the members of each 
branch of the legislature." Adopted 1792. 

Maryland. — Art. 49. " The chancellor, all judges, 
&c. shall hold their commissions during good beha- 
vior, removable oiily on conviction in a court of law." 
Adopted 1776. 

Virginia. — " . . . Judges of the supreme court of 
appeals, judges in chancery, judges of admiralty, &c-. 
to be commissioned by the government, and continue 
in office during good behavior, removable 07ily by im- 
peachment, except in a case of incapacity." Adopted 
1776. 

North Carolina. — Art. 13. "... Judges of the su- 
preme courts of law and equity, judges of admiralty, 
&c. to be commissioned, &c. and hold their offices 
during good behavior, removable only by impeach- 
ment." Adopted 1776. 

South Carolina. — Art. 3, sec. 1. " The judiciary 
power shall be vested in such superior and inferior 
courts of law and equity, as the legislature shall, from 



178 LIFE OF NATHANIEL CHIPMAN. 

time to time, direct and establish. The judges of 
each shall hold their commissions during good beha- 
vior," removable only by impeachment. Art. 5, sec. 
1. "But no impeachment shall be made unless with 
the concurrence of two-thirds of the house of repre- 
sentatives. Adopted 1790. 

Georgia. — Art. 3, sec. 1. " The judges of the su- 
perior court shall be elected for the term of three 
years, removable by the governor on the address of 
tioo thirds of both houses, or by impeachment and 
conviction thereon." Sec. 4. " Justices of the infe- 
rior courts shall be appointed, &c. and hold their 
commission during good behavior, or as long as they 
respectively reside in the county for which they shall 
be appointed," unless removed as in section first. 
Adopted 1798. 

Tennessee. — Art. 5. "... Shall appoint judges of 
the several courts of law and equity, &c. who shall 
hold their respective offices during good behavior," 
removable only by impeachment. Adopted 1796. 

Kentucky. — Art. 4. " The judges both of the su- 
preme and inferior courts, shall hold their offices 
during good behavior ; but for any reasonable cause, 
which shall not be sufficient ground for impeachment, 
the governor shall remove any of them on the address 
of two-thirds of each house of the general assembly." 
Adopted 1799. 

Ohio. — Sec. 7. " The judges of the supreme court, 
the presidents and the associate judges of the courts 
of common pleas, shall be appointed, &:c. and shall 
hold their offices for the term of seven years, if so 
long they behave well," removable only by impeach- 
ment. Adopted 1802. 



LIFE OF NATHANIEL CHIPMAN. 119 

Louisiana. — The following is the 5th section of 
the 4th article in the constitution of Louisiana : " The 
judges, both of the supreme and inferior courts, shall 
hold their offices during good behavior ; but, for any 
reasonable cause, which shall not be sufficient ground 
for impeachment, the governor shall remove any of 
them on the address of three-fourths of each house 
of the general assembly. Provided, however, that the 
cause or causes for which such removal may be re- 
quired, shall be stated at length in the address, and 
inserted on the journal of each house." 

On a review of the constitutions of the several 
states it appears, that no state which has formed a 
constitution, except Vermont, elects its judges annu- 
ally. 

That only two states elect their judges annually, 
namely, Rhode Island and Connecticut. 

That only three states elect their judges for a term 
of years, namely. New Jersey, for seven years ; Geor- 
gia (its supreme court) for three years, and Ohio for 
seven years. 

That eleven states elect their judges during good 
behavior, namely. New Hampshire, Massachusetts, 
New York, Pennsylvania, North Carolina, South 
Carolina, Tennessee, Kentucky, Delaware, Mary- 
land and Virginia. 

That of these, only two limit the duration of office 
by age, namely. New Hampshire to seventy, and 
New York to sixty. 

That in no state are the judges removable by the 
address of a majority of both houses. 

That in two states the governor, with the consent of 



180 LIFE OF NATHANIEL CHIPMAN. 

council, MAY remove upon the address of a majority, 
namely, Massachusetts and New Hampshire. 

That in three states the governor may remove on 
the address of tivo-tliirds of both houses, namely, Penn- 
sylvania, Delaware and Georgia. 

That in one state the governor shall remove the 
judges on the address of two-thirds of both houses, 
namely, Kentucky. 

That in five states the judges are removable only 
on impeachment, &c. New Jersey, Virginia (except 
for incapacity,) North Carohna, South Carolina and 
Tennessee. 

That in one state they are removable only on con- 
viction in a court of law, namely, Maryland. Spoonerh 
Vermont Journal. 

Note 4. 

Judire Jeffries. — He held his office durante bene 
placito, of the crown. "When his master abdi- 
cated the throne his own security lay only in flight. 
From the law, the law's worst assassin could expect 
no protection. That he might escape unknown, he 
shaved his eye-brows, put on a seaman's habit, and 
all alone made the best of his way to Wapping, with 
a design to take shipping for a foreign country. But 
his countenance could not remain undiscovered under 
all this disguise ; a man, whom, upon a trial, he had 
frightened almost into convulsions, no sooner got 
glimpse of it, than in a moment he recollected all the 
terrors he had formerly felt. Notice was instantly 
given to the mob, who rushed in upon him like a herd 
of wolves. He was goaded on to the lord mayor ; the 



LIFE OF NATHANIEL CHIPMAN. 181 

lord mayor, seeing a man on whom he had never 
looked without trembhng, brought before him in this 
situation, fell into fits, was carried to his bed, and 
never rose from it. On his way to the tower, to 
which he was committed, he saw threatening faces 
on every side ; he saw whips and halters held up 
around him, and cried out in an agony " for the Lord's 
sake keep them off." I saw him, I heard him, says a 
cotemporary historian, and without pity too ; though 
without pity I never saw any other malefactor."^ 

Even Jeffries might have been a good judge had 
he held his office independent of the crown. The 
English people felt the want of this independency in 
their judges, and struggled for it until they, in a 
measure, obtained their object. An act was passed 
13 W. III. entitled " An act for the further limitation 
of the crown, and better securing the rights and liber- 
ties of the subject," in which provision is made that 
the commissions of the judges shall be, not as for- 
merly, " durante bene placito,^^ but " quamdiu bene 
se gesserint.^'' 

If Judge Jeffries was the law's worst assassin when 
he held his office, during the pleasure of one despot, 
what would he have been had he held his office for a 
year, or during the pleasure of (Mr. Jefferson's) one 
hundred and seventy -three despots ? ^ It is impossi- 
ble to tell ; it is however, probable, that one hundred 
and seventy-three despots would have kept him in 
office as long as one did ; if he held his office for a 

' Guth. 1063. 

* See page 36, Mr. Jefferson's Notes, for his opinion of one hundred 
and seventy- three despots. 
23 



182 LIFE OF NATHANIEL CHIPMAN. 

year, he might have been reappointed, year after 
year, notwithstanding all his oppression and cruelty. 
It is a work of pleasure to quote on this subject 
the writings of Mr. Jefferson. He says, in his Notes 
on Virginia, page 117, that "Every species of gov- 
ernment has its specific principles. Ours, perhaps, 
are more peculiar than those of any other in the uni- 
verse. It is a composition of the freest principles of 
the English constitution, with others, derived from 
natural right and natural reason." He meant to be 
understood, that the provision, to hold the office of 
judge quamdiu bene se gesserint, or during good beha- 
vior, is one of these Jirst principles ; he therefore 
introduced it into his draft of a constitution for the 
people of Virginia. Let the people of Vermont adopt 
the same principle. 

Upon the propriety of fixing upon a certain age beyond 
which a judge cannot constitutionally hold his office. 

Judge Wilson, with much pleasantry remarks, that 
" The duration assigned by nature to human life is 
often complained of as very short ; that assigned to it 
by some politicians is much shorter. For some po- 
litical purposes, a man cannot breathe before he num- 
bers thirty-five years ; as to other political purposes, 
his breath is extinguished the moment he reaches 
sixty. By the constitution of New York, "the chan- 
cellor, the judges of the supreme court, and the first 
judge of the county court in every county, hold their 
offices until they shall have respectively attained the 
age of sixty years." 

How differently is the same object received, at 



LIFE OF NATHANIEL CHIPMAN. 183 

different times, and in different countries. In New 
York, a man is deemed unfit for the first ofiices of the 
state after he is sixty ; in Sparta, a man was deemed 
unfit for the first ofiices of the state till he was sixty. 
Till that age no one was entitled to a seat in the sen- 
ate, the highest honor of the chief. How convenient 
it would be, if a politician possessed the power, so 
finely exercised by the most beautiful of poets ! Vir- 
gil could, with the greatest ease imaginable, bring 
iEneas and Dido together ; though in fact, some cen- 
turies elapsed between the times in which they lived. 
Why cannot some politician, by the same or some 
similar enchanting art, produce an ancient and a 
modern government as cotemporaries ? The effect 
would be admirable. The moment that a gentleman 
of sixty would be disqualified for retaining his seat as 
a judge of New York, he would be qualified for 
taking his seat as a senator of Sparta. 2 Wilson's 
Works, 144. 

Balance of Power. 

" The true meaning of a balance of power," says 
John Adams, " is best conceived by considering what 
the nature of a balance is. It supposes three things ; 
first, the part which is held, together with the hand 
that holds it ; and then the two scales, with whatever 
is weighed therein. In a state within itself, the bal- 
ance must be held by a third hand, who is to deal 
the remaining power, with the utmost exactness into 
the several scales. The balance may be held by the 
weakest, who, by his address, removing from either 
scale, and adding his own, may keep the scales duly 



184 LIFE OF NATHANIEL CHIPMAN. 

poised ; when the balance is broken by mighty weights 
falhng into either scale, the power will never con- 
tinue long, in equal division between the two re- 
maining parties, but, till the balance is fixed anew, 
will run entirely into one." Adams's Defence^ vol. 1, 
p. 100. 

Let the people take care of the balance, and espe- 
cially their part of it ; but the preservation of their 
peculiar part of it will depend still upon the existence 
and independence of the other two ; the instant the 
other branches are destroyed, their own branch, their 
own deputies become their tyrants. Ibid. 370. 

Judge Wilson, treating of this subject, says, " though 
the foregoing great powers — legislative, executive and 
judicial — are all necessary to a good government, yet 
it is of the last importance that each of them be pre- 
served distinct and unmingled, in the exercise of 
its separate powers, with either or with both of the 
others. Here every degree of confusion in the plan 
will produce a corresponding degree of interference, 
opposition, or perplexity in its execution. Let us 
suppose the legislative and executive powers united 
in the same person ; can liberty or security be ex- 
pected ? No. In the character of executive magis- 
trate, he receives all the power, which, in the charac- 
ter of legislator, he thinks proper to give. May he 
not, then — and if he may, will he not, then — such 
is the undefined and undefinable charm of power — 
enact tyrannical laws to furnish himself an opportu- 
nity of executing them in a tyrannical manner ? 

Liberty and security in government depend not on 
the limits which the rulers may please to assign to the 



LIFE OF NATHANIEL CHIPMAN. 185 

exercise of their own powers, but on the boundaries, 
within which their powers are circumscribed by the 
constitution. He who is continually exposed to the 
lash of oppression, as well as he who is immediately 
under it, cannot be denominated free. 

" Let us suppose the legislative and judicial powers 
united, \vhat would be the consequence ? 

" The lives, liberties and properties of the citizens 
would be committed to arbitrary judges, whose de- 
cisions would, in effect, be dictated by their own pri- 
vate passions, and would not be governed by any 
fixed or known principles of law. For though, as 
judges, they might be bound to observe those prin- 
ciples, yet, Proteus-like, they might immediately as- 
sume the form of legislators, and in that shape they 
might escape from every fetter and obligation of 
law. 

" Let us suppose a union of the executive and judi- 
cial powers ; this union might soon be an overbalance 
for the legislative authority ; or if that expression is 
too strong, it might certainly prevent or destroy the 
proper and legitimate influence of that authority. 
The laws might be eluded or perverted, and the ex- 
ecution of them might become, in the hands of the 
magistrate, or in his minions, an engine of tyranny 
and injustice. Where and how is redress to be ob- 
tained ? From the legislature ? They make new 
laws to correct the mischief; but these new laws are 
to be executed by the same persons, and will be exe- 
cuted in the same manner as the former. Will re- 
dress be found in the courts of justice ? In those 
courts, the very persons who were guilty of the op- 



186 LIFE OF NATHANIEL CHIPMAN. 

pression in their administration, sit as judges to give 
a sanction to their oppression by their decrees. No- 
thing is more to be dreaded than maxims of law and 
reasons of state blended together by judicial author- 
ity. Among all the terrible instruments of arbitrary 
power, decisions of courts, whetted, and guided and 
impelled by considerations of policy, cut with the 
keenest edge, and inflict the deepest and most deadly 
wounds. 

" Let us suppose, in the last place, all the three 
powers of government to be united in the same man, 
or body of men, miserable indeed vi^ould the case be ! 
This extent of misery, however, at least in Europe, is 
seldom experienced ; because the power of judging 
is generally exercised by a separate department. But 
in Turkey, where all three powers are joined in the 
Sultan's person, his slaves are crushed under the 
insupportable burthen of oppression and tyranny. In 
some of the governments of Italy, these three powers 
are also united. In such there is less liberty than in 
European monarchies ; and their governments are 
obliged to have recourse to as violent measures to 
support themselves as even that of the Turks. At 
Venice, where an aristocracy, jealous and tyrannical, 
absorbs every power, behold the state inquisitors, the 
lion's mouth, at all times open for the secret accusa- 
tions of spies and informers. In what a situation 
must the wretched subjects be under such a govern- 
ment, all the powers of which are leagued, in awful 
combination, against the peace and tranquillity of 
their minds. 

" But, further ; each of the great powers of gov- 



LIFE OF NATHANIEL CHIPIVIAN. 187 

ernment should be independent as well as distinct. 
When we say this it is necessary — since the subject 
is of primary consequence in the science of govern- 
ment — that our meaning be fully understood and ac- 
curately defined. For this position, like every other, 
has its limitations ; and it is important to ascertain 
them. 

" The independence of each power consists in this, 
that its proceedings and the motives, views and prin- 
ciples, which produce those proceedings, should be 
free from the remotest influence, direct or indirect, 
of either of the other two powers. But further than 
this, the independency of each power ought not to 
extend. Its proceedings should be formed without 
restraint, but, when they are once formed, they should 
be subject to control. 

" We are now led to discover, that between these 
three great powers of government there ought to be 
a natural dependency as well as a mutual indepen- 
dency. We have described their independency ; let 
us now describe their dependency. It consists in this, 
that the proceedings of each, when they come forth 
into action and are ready to aflfect the whole, are 
liable to be examined and controlled by one or both 
of the others. 

" So far are these different qualities of mutual de- 
pendency and mutual independency from opposing or 
destroying each other, that, without one, the other 
could not exist. Wherever the independency of one, 
or more than one, is lost, the mutual dependency of 
the others is that moment lost likewise ; it is changed 
into a constant dependency of that one part on two ; 
or as the case may be, of those two parts on one. 



188 LIFE OF NATHANIEL CHIPMAN. 

" An example may illustrate the foregoing propo- 
sitions. They cannot be explained too fully. The 
congress is intrusted with the legislative power of the 
United States. In preparing bills, in debating them, 
in passing them, in refusing to pass them, their reso- 
lutions and proceedings should be uncontrolled and 
uninfluenced. Here is the independency of the legis- 
lative power. But after the proceedings of the legis- 
lature are finished, so far as they depend on it, they 
are sent to be examined, and are subject to a given 
degree of control by the head of the executive de- 
partment. Here is the dependency of the legislative 
power. It is subject also to another given degree of 
control by the judiciary department, whenever the 
laws though in fact passed, are found to be contradic- 
tory to the constitution. 

" The salutary consequence of mutual dependency 
of the great powers of government is, that if one 
part should, at any time, usurp more power than the 
constitution gives, or make an improper use of its 
constitutional power, one or both the other parts may 
correct the abuse, or may check the usurpation. 

" The total disjunction of these powers would, in 
the end, produce that very union against which it 
seems to provide. The legislature would soon be- 
come tyrannical, and would assume to itself the rights 
of the executive and judicial powers. 

" The important conclusion to be drawn from the 
premises, which we have established is, that in gov- 
ernment, the perfection of the whole depends on the 
balance of the parts, and the balance of the parts 
consists in the independent exercise of their separate 



LIFE OF NATHANIEL CHIPMAN. 189 

powers, and when their powers are separately exer- 
cised, therein consists their mutal influence and opera- 
tion on one another. Each part acts and is acted 
upon, supports and is supported, regulates and is reg- 
ulated by the rest. 

" It might be supposed, that these powers, thus mu- 
tually checked and controlled, would remain in a state 
of inaction. But there is a ncessitv for movement in 
human affairs, and these powers are forced to move, 
though still, to move in concert. They move, indeed, 
in a line of direction somewhat different from that, 
which each acting by itself, would have taken ; but at 
the same time, in a Hne partaking of the natural 
direction of each, and formed out of the natural 
directions of the whole — the true line of public lib- 
erty and happiness." Wilsoii's Works, 407-411. 

Another eminent man, Thomas Jefferson, late pres- 
ident of the United States, speaking of the old con- 
stitution of V irginia, which had its three powers with- 
out a balance, says, 

" All the powers of government, legislative, execu- 
tive and judiciary, result to the legislative body. The 
concentrating these in the same hands is precisely the 
definition of a despotic government. It will be no 
alleviation that these powers will be exercised by a 
plurality of hands, and not a single one. One hun- 
dred and seventy-three despots would surely be as op- 
pressive as one. Let those who doubt it turn their 
eyes on the republic of Venice. As little will it avail 
us that they are chosen by ourselves. An elective des- 
potism was not the government we fought for, but one 
which should not only be founded on free principles, 

24 



190 LIFE OF NATHANIEL CHIFMAN. 

but in which the powers of government should be so 
divided and balanced among several bodies of majes- 
tracy, as that no one could transcend their legal hmits 
without being effectually checked and restrained by 
the others. 

For this reason that convention, which passed the 
ordinance of government, laid its foundation on this 
basis, that the legislative, executive and judiciary de- 
partments should be separate and distinct, so that no 
person should exercise the powers of more than one 
of them at the same time. But no barrier ivas pro- 
vided between these several powers. The judiciary and 
executive members were left dependent on the legisla- 
tive for their subsistence in office, and some of them for 
their continuance in it. If, therefore, the legislature 
assumes executive and judiciary powers, no opposi- 
tion is likely to be made ; nor, if made, can it be 
effectual ; because in that case they may put their 
proceedings into the form of an act of assembly, 
which will render them obligatory on the other 
branches. They have accordingly, in many instances, 
decided rights which should have been left to judi- 
ciary controversy; and the direction of the executive, 
during the whole time of their session, is becoming 
habitual and familiar. And this is done with no ill 
intention. The views of the present members are 
perfectly upright. When they are led out of their 
regular province, it is by art in others, and inadver- 
tence in themselves. And this will probably be the 
case for some time to come. But it will not be a 
very long time. Mankind soon learn to make inter- 
ested uses of their right and power which they pos- 



LIFE OF NATHANIEL CHIPMAN. 191 

sess, or may assume. The public money and public 
liberty, intended to have been deposited with three 
branches of magistracy, but found inadvertently to be 
in the hands of one only, will soon be discovered to 
be sources of wealth and dominion to those who hold 
them ; distinguished too by this tempting circum- 
stance, that they are the instrument as well as the ob- 
ject of acquisition. With money, we will get men, 
said Caesar, and with men we will get money. Nor 
should our assembly be deluded by the integrity of 
their own purposes, and conclude that these unlimited 
powers will never be abused, because themselves are 
not disposed to abuse them." Notes on Virginia, 161, 
162. 

Mr. Jefferson, without intending it, has here given, 
in anticipation, a striking description of the govern- 
ment of Vermont, and furnished unanswerable argu- 
ments in favor of the amendments. 

When the convention, called to consider the pro- 
posed amendments to the constitution, assembled, 
they rejected them in gross without the least discus- 
sion of their merits — they were blown off by the 
spirit of party, as proposed amendments to the con- 
stitution, in almost every instance, have been. The 
council of censors are elected by a general ticket, 
and if not all taken from the dominant party, they 
are selected by that party ; and whatever amendments 
such council may propose, will be received in an 
unfavorable light by their political opponents. And 
when the members of the convention assemble, their 
discordant views in relation to amending the consti- 
tution, cannot be reconciled by any compromise ; the 



192 LIFE OF NATHANIEL CHIFMAN. 

powers of the convention being restricted to the sim- 
ple adoption or rejection of each article proposed, 
without the least alteration. 

After the amendment of the constitution, in the 
year 1836, by constituting a senate, Judge Chipman 
wrote to his correspondent, who had given him an 
account of the proceedings of the convention : — "I 
fully agree with you as to the importance of the 
amendment, adding a senate to the legislative depart- 
ment of the government ; its beneficial effects as a 
check on the rashness of legislation, will be more and 
more apparent every year. I think it also a good 
omen of other important amendments in future, espe- 
cially one in relation to the tenure of judicial office, 
and another, taking from the legislature the power of 
appointment, and vesting it in a bound less liable to 
a corrupt and corrupting influence. 

Other amendments should be thought of; one con- 
stituting a court of chancery distinct from a court of 
law. I have long since learned in the school of ex- 
perience, on whose teachings we may with more 
safety rely than upon the most ingeniously constructed 
theory, that there are insurmountable objections to 
our present chancery system, all of which I cannot 
detail in a letter. The most obvious to all judges, 
and to all conversant with our judicial proceedings, 
are, that the judge being compelled at the same term 
to turn his attention to the trial of issues of fact and 
issues of law, and to cases in chancery, a versatility 
of talent is required, which no judge possesses. That 
the principal business, at every term, is the trial of 
cases at law, the consequence is that no system of 



LIFE OF NATHANIEL CHIPMAN. 193 

practice has been settled, and probable never can be 
settled, to prevent suits in chancery from being passed 
over and postponed from term to term, occasioning 
unreasonable delay and ruinous expense to the suit- 
ors. I confess I was never able to devise any ade- 
quate remedy for these evils under our present chan- 
cery system. 

Another amendment might be thought of relating 
to the local aflairs and police of the counties, which 
are now committed to the county courts, with insuffi- 
cient and not very definite powers. I think this does 
not well assort with our political institutions. The 
towns are organized with sufficient powers to man- 
age their own local concerns. A board of super- 
visors in each county to be elected by the people of 
the several towns, with sufficient powers to regulate 
and order the local aflairs and interests of the coun- 
ties, might be very properly interposed between the 
towns and the general government of the state. It 
will be seen at a glance, that there are many local 
concerns of the counties that might be better man- 
aged by such a board than by the legislature, and 
more in consistence with the principles and form of 
our government than by the county court. It is un- 
necessary to enter into details. These two amend- 
ments are of less importance, because the legislature 
may erect a court of chancery, and establish a system 
of police for the counties, under the existing consti- 
tution. Yet a court of chancery, and a system of po- 
lice for the counties should be rendered more stable 
than they can be by acts of legislation. The two 
former amendments relating to the tenure of judicial 



194 LIFE OF NATHANIEL CHIPMAN. 

office, and the power of appointment, are of very 
great importance, and ought to be kept constantly in 
view of the people by repeated but calm and candid 
discussion. Perhaps, if indolence does not prevent, 
I may hereafter send you some speculations on the 
subject. But I fear the attention of the people can- 
not be turned from the interest of party to the inter- 
est of the state." He soon after found this to be the 
case, and paid no further attention to the subject. 

On the 20th of December, 1842, he wrote to his 
correspondent : — "I am glad that you have under- 
taken an examination of the last article in our con- 
stitution, providing for the election of a council of 
censors, periodically, at the expiration of every term 
of seven years, vested with certain powers, and 
among others, that of proposing amendments to the 
constitution, and calling a convention to act on their 
specific propositions. As to their censorial powers, 
I have always considered them a mere nose of wax, 
and the impropriety, not to say absurdity, of the pro- 
vision, which compels the representatives of the peo- 
ple, in convention, to work in trammels, confining 
them to the adoption or rejection of each article pro- 
posed, without the least alteration, is very apparent. 
I wish I could write you more fully on this subject, 
but I have so nearly lost my eye-sight that writing, 
as you will perceive by this, has become extremely 
difficult." 



CHAPTER IX. 

Elected Chief Justice in October, 1813 — Displaced in 1815 — His Judi- 
cial Character. 

In October, 1813, Mr. Chipman was again elected 
chief justice of the supreme court, and continued in 
the office until October, 1815, when, by reason of our 
annual election of the judges, and by a change of par- 
ties, he and the associate judges were displaced. 

Many of the most important cases decided by the 
supreme court, while he was chief justice, were re- 
ported by him, and some years after, were published 
in D. Chipman's Reports. 

In portraying the character of Nathaniel Chipman, 
I have already shown that his intellectual and moral 
qualities peculiarly fitted him for the office of judge. 
Yet he so nearly realized what he said in a playful 
manner to his classmate, Mr. Fitch, that he should 
become the oracle of law to the state of Vermont, it 
seems proper, and may be useful to state the manner 
in which he presided as chief justice, and more par- 
ticularly the causes which operated to render him so 
distinguished as a judge. 

The popularity which he acquired arose from, and 
followed, the performance of his judicial duties. Such 
was his manner of presiding, and such his intercourse 



196 LIFE OF NATHANIEL CHIPMAN. 

with his fellow-citizens, that all classes of men felt 
quite certain that he never said or did anything for 
the purpose of acquiring popularity. An eminent 
jurist remarks — "He never put himself forward as a 
candidate for office, but when he was advanced to 
any public station, it seemed to arise from the gen- 
eral sense of the community, that his talents were 
wanted in the station to which he was advanced. 
Although on a change of parties, in the year 1813, 
the federalists had a majority of only one or two in 
joint ballot, and although party spirit was never more 
excited or more proscriptive, he was elected chief 
justice by a majority of seventeen. 

" I was in considerable practice during the differ- 
ent times that Nathaniel Chipman was chief justice, 
and I can truly say, that in times of the greatest party 
excitement, I never heard an intimation, nor even a 
whisper, expressing a doubt as to the talents, inde- 
pendence, and impartiality of Judge Chipman. When- 
ever he presided, he seemed to inspire the profession 
and the community with the most unlimited confi- 
dence. He governed the court with the greatest 
ease ; his presence on the bench appeared sufficient 
to preserve the most perfect order in court. Every 
one, both counsel and parties, had the fullest confi- 
dence that every case would be decided according to 
law and the justice of the case, and his decisions 
seldom failed of giving entire satisfaction to all con- 
cerned. He had a peculiar faculty in charging the 
jury ; while he retained all questions of law strictly 
under the control of the court, he was careful not to 
intrench on the province of the jury, as to the finding 



LIFE OF NATHANIEL CHIPMAN. 197 

of the facts in the case. His course was, to give a 
summary of the testimony of each witness, and instruct 
the jury as to the point in the case to which each part 
of the testimony was to be appHed. Then to state 
the situation, circumstances, and manner of testifying 
of each witness, what circumstances mihtated against, 
and what corroborated the testimony, in such a man- 
ner as to leave the entire question of fact to the jury; 
in this manner he seldom failed of leading the jury to 
a satisfactory verdict. His treatment of the members 
of the bar was such as to promote in them, high and 
honorable views of the profession and practice of 
law. He had a happy talent of adapting the law to 
the justice of the case, so that it was seldom neces- 
sary to apply to the equity side of the court." ^ 

At four different times he left his practice, and took 
a seat upon the bench ; and in every case he put off 
the manner of the advocate, and assumed that of the 
judge, and, of course, never argued the case in charg- 
ing the jury ; but made a statement of the evidence 
as above related, with a statement of the principles 
of law involved in the case. And from his habitual 
regard for truth, he did it in such manner as to satisfy 
all who heard him, that it was done with perfect im- 
partiality. He used to remark, that he never dared 
to argue a case in charging the jury, for if he did, the 
jury would undertake to argue it also, and in their 
view, their own arguments Avould outweigh his. He 
had such a detestation of fraud or oppression, and 
even of anything unfair or dishonorable in the party 

' Hon. Charles Marsh. 
25 



198 LIFE OF NATHANIEL CHIFMAN. 

or his counsel, that when viewed with his habitual 
care and caution, the facts appeared clear and un- 
doubted. He was sure to animadvert upon the con- 
duct of the person imphcated, in open court, but 
never with severity in the manner of doing it. All 
experience has shown that this practice has a very 
salutary effect on the community. But it is not every 
judge who can pursue this course, with safety to him- 
self or with any good effect on those who hear him. 
It is necessary that he have a clear, discriminating 
mind ; that he be cautious in forming his opinions ; 
that he be entirely free from all prejudice, and that he 
be conscious that he is so. Sometimes an unfortunate 
manner of presiding will prevent a judge from pursu- 
ing this course with any good effect — but this is sel- 
dom the case ; for if he have every other qualifica- 
tion, his manner will soon be overlooked. 

In a certain case before the court, a motion was 
made for a continuance ; on a hearing, it appeared 
that the counsel making the motion had resorted to a 
number of tricks and cunning contrivances to obtain 
the continuance ; at the close of the arguments, the 
judge simply remarked, " It has been said, and all ex- 
perience has verified the truth of the observation, 
that there is nothing so silly as cunning — the cause 
cannot be continued." 

On the trial of an action of ejectment before the 
court, the plaintiff relied on a deed of the land in 
question, from the defendant. The defendant's coun- 
sel objected to the admission of the deed in evidence, 
for that one of the two subscribing witnesses to the 
deed was the wife of the grantor ; upon which Judge 



LIFE OF NATHANIEL CHIPMAN. ^ 199 

Chipman addressed the defendant's counsel, saying, 
" If this is your only defence, your chent ought to be 
advised to make out a new and proper deed without 
hesitation." Accordingly the defence was at once 
abandoned. 

No popular excitement, no excitement at the bar, 
could ever disturb hirn, but he was at all times, and 
under all circumstances, equally cool, deliberate and 
patient. It seemed that his mind could never be 
diverted from the subject under examination. Many 
causes had operated to produce these qualities both 
moral and intellectual, which so preeminently quali- 
fied him for the performance of his judicial duties. 
As we have before remarked, he had a most abiding 
sense of his accountability to the Supreme Being, 
always insisting that there was no other foundation 
for moral obligation. A conscientious regard for 
truth thence resulting, afforded him essential aid in 
the cultivation of his intellectual faculties; for it is 
not only an important stimulus in the pursuit of it, 
but is a protection against false reasoning. 

It has been said, that " the study of the dead lan- 
guages is highly beneficial, as it cultivates a habit of 
patience, of attention, of acuteness and discrimina- 
tion." The truth of this is verified as far as it can be 
verified by one striking instance, in which all those 
mental qualities and habits have followed an habitual 
attention to the dead languages. He was shielded 
against prejudice in making his decisions, as well by 
his acute and discriminating mind, as by his habitual 
regard for truth and justice. He so clearly discerned 
a difference between the right and wrong side of a 



200 LIFE OF NATHANIEL CHIPMAN. 

cause, and derived so high a degree of pleasure from 
the investigation of a ciise, and the formation of a 
just and satisfactory decision, that he seemed to lose 
sight of the parties, and everything extraneous. 
Whereas a judge, who, for want of clear perception, 
can perceive no distinction between the right and 
wrong side of a case is influenced in making his de- 
cision by the slightest prejudice. True, a man of 
ordinary powers of mind, if he be undisturbed by his 
passions, so that he can make the best use of his 
faculties, and if he have also a strong sense of justice, 
may become a useful and respectable judge, but he 
can never be a Mansfield or a Marshall. 

We have seen that Judge Chipman was early in 
life distinguished for his untiring industry in the acqui- 
sition of general knowledge. When he entered up- 
on his professional studies, he was equally industrious 
and equally successful, and his legal learning became 
deep and extensive. But his attention was not con- 
fined to legal science ; it extended to the whole circle 
of the arts and sciences ; to all the various trades 
and occupations of men. And many citizens, trades- 
men and manufacturers, have expressed their sur- 
prise that his knowledge of the various branches of 
business was so minute, that it seemed to be practical 
as well as theoretical. President Dwight remarked, 
that he fell in company with him not many years after 
he entered upon the business of his profession, and 
calculating that he would feel more at home in con- 
versing upon legal science, introduced that subject ; 
but before they parted, he found that his knowledge 
embraced all the sciences, and that in conversing 



LIFE OF NATHANIEL CHIPMAN. 201 

upon theology he appeared perfectly at home. This 
general knowledge which he had acquired was highly 
useful to him as a jurist. His memory was remarka- 
bly retentive. Whenever he acquired a knowledge 
of important principles, or facts in themselves import- 
ant, it appeared that they never escaped his recollec- 
tion, but were laid up in perfect order, always ready 
for use. 

That which he acquired from books he made so 
perfectly his own, that it appeared not to have been 
acquired and retained in memory, but to be the re- 
sult of his own investigations. In conversation upon 
legal subjects, he seldom referred to authorities, but 
drew upon his knowledge of the whole system of 
law ; and applied the legal principles to any case 
with the greatest ease. Yet as a judge, he had such 
a veneration for that system of jurisprudence which 
had been settled, and he was so strongly impressed 
with the necessity of adhering to it as a system, that 
no judge was ever more careful to adhere to the prin- 
ciples settled by decided cases. 

During the time that he was last chief justice, he 
found that the court had previously put a construc- 
tion upon certain statutes, which did not accord with 
his views ; yet he felt himself bound by former de- 
cisions. In an action of ejectment, one of the par- 
ties rested on a title derived from a vendue sale for 
the collection of a road tax. The opposite party 
contended that the vendue title was void, the direc- 
tions of the statute not having been pursued, and 
cited a case which fully supported his position. The 
judge, after a careful examination of the statute, re- 



202 LIFE OF NATHANIEL CHIPMAN. 

marked, "Were it a new case I might take a different 
view of it, but a judicial construction has been put 
upon the statute by a prior decision, which ought 
not to be set aside, especially as it relates to the title 
of real estate, to alter the law by giving a different 
construction to the statute, might do the greatest 
injustice." 

Yet if on a careful examination of a decided case, 
he considered that the settled principles of law had 
been violated, he did not hesitate to deny its authority 
as a precedent. In delivering his opinion in the case 
of Rhodes v. Peisley, decided by the supreme court in 
the year 1791, he denied the authority of the case of 
Moses V. McFarlan, 2 Burr. 1005, going no further 
into an examination of it than the case under con- 
sideration required. He stated and commented upon 
the case as follows : " Moses indorsed four notes to 
McFarlan under a special agreement in writing, that 
McFarlan should indemnify him against all the con- 
sequences of such indorsement. McFarlan brought 
his actions on the several indorsements against Moses 
before the court of conscience, an inferior court of 
limited jurisdiction. The court refused to hear evi- 
dence of the agreement, and rendered judgment in 
each of the four cases against Moses. Moses there- 
upon paid the amount of the judgments, and brought 
his action for money had and received against Mc- 
Farlan, to recover back the money which had been 
so unjustly received, and it was solemnly decided that 
the action will lie. This is to say, that the indorser 
is holden, and he is not holden. The evidence ivhich 
could not be admitted to save him from an unjust pay- 



LIFE OF NATHANIEL CHIPMAN. 203 

ment, could be admitted and icas deemed amply suffi- 
cient in another action to recover hack the identical 
money. ^'' This, it is believed, was the first time that 
the authority of the case Moses v. McFarlan was 
questioned by any court in Great Britain or in the 
United States. Four years afterwards, in the year 
1795, Lord Chief Justice Eyre, in dehvering his opin- 
ion in the case of Phillips v. Hunter, 2 H. B. 402, 
commented upon the case, Moses v. McFarlan, say- 
ing, among other things, " In that case, I think the 
agreement was a good defence in the court of con- 
science ; but if it were otherwise, the recovery there 
was a breach of the agreement upon which an ac- 
tion lay, and was, in my judgment, the only remedy. 
Shall the same judgment create a duty for the recoverer, 
upon which he may have debt, and a duty against him 
upon ivhich an action for money had and received will 
lie ? " It is very certain that there could have been 
no communication between these two judges ; this 
renders the coincidence of thought and reasoning very 
striking. 



CHAPTER X. 

Appointed Professor of Law in Middlebury College — Delivered a course 
of Lectures — His Work on Government — Adventures of his son Ed- 
win — Sickness and Death — Conclusion. 

In the year 1816, Mr. Chipman was appointed pro- 
fessor of law in Middlebury College, and the year fol- 
lowing delivered a course of lectures, which attracted 
considerable attention at the time, but they were 
never published. Some of these, most interesting to 
the general reader, will be found in the Appendix, 
Nos. II. III. IV. and V. 

I also find among his papers a manuscript pam- 
phlet, entitled, " Observations on Mr. Calhoun's Ex- 
pose of his Nullification Doctrines, containing an ac- 
count of the origin of the two great political parties, 
federal and anti-federal, with an impartial history of 
these parties, and as it also contains a very clear refu- 
tation of Mr. Calhoun's arguments or positive asser- 
tions, it cannot but be useful. I therefore give it a 
place in the Appendix, No. VI. 

In the year 1833, he published a work on govern- 
ment, entitled, " Principles of Government," a trea- 
tise on free institutions, including the constitution of 
the United States. 



LIFE OF NATHANIEL CHIPMAN. 205 

From the following preface to the work, the reader 
will learn the design of the author, and something of 
the manner in which he has treated the subject. 

" The subject of government has employed the pens 
of the first philosophers of every age, from the time 
of Plato and Aristotle to the present day. To them 
the world are much indebted, especially to some of 
the moderns. None of them, however, as far as re- 
collection serves, have attempted, or at least, have 
succeeded in an investigation of first principles ; in 
analyzing the social nature of man, and deducing 
from the relations thence resulting, the principles that 
ought to be pursued in the formation of civil insti- 
tutions ; and yet it is believed, this is the only cer- 
tain ground of investigation, the only mode in which 
any general, consistent, and practical principles in 
the science of government can be established. The 
greater number of those who have written on this sub- 
ject have employed themselves in illustrating and re- 
commending the principles and form of some govern- 
ment, for which they had conceived a predilection ; 
while others, in their theories, have consulted the 
imagination rather than the understanding. It will, 
therefore, be readily perceived that the theories and 
principles of neither class of these writers can be of 
general, much less of universal application ; that they 
cannot be applied, at least, indiscriminately, to gov- 
ernments of different construction, and embracing 
different, and, in many respects, opposite principles. 
Such are the civil and political institutions of these 
United States ; they differ in principles and construc- 
tion very essentially from all that have preceded them. 

26 



206 LIFE OF NATHANIEL CHIPMAN. 

The author convinced of that difference of principles 
and the excellence of our institutions, owing chiefly 
to that diflerence, published as early as the year 1793, 
a small work, entitled, ' Sketches of the Principles 
of Government; with a view of briefly illustrating 
the Principles on which they are founded.' That 
little work, which was well received at the time, has 
long been out of print. 

" The author had entertained a design, as no trea- 
tise had appeared fully embracing the subject, of pub- 
lishing a revised edition of that work ; but on a review, 
he found it too limited in its plan, as well as deficient 
in arrangement. He therefore resolved to new-cast 
the whole, to enlarge the plan, to give it a more regu- 
lar and scientific arrangement, and, as far as he was 
capable, to make it an elementary treatise on that 
kind of government which has been adopted in these 
United States. In the execution of this task, although 
the work consists principally of new and additional 
matter, the author has, in several instances, admitted 
portions of his former work, with such corrections as 
were suggested by a long course of observations and 
experience. 

" He has enjoyed many advantages favorable to the 
accomplishment of his design ; he has been an atten- 
tive observer of passing events, and not un frequently 
an actor in the political scenes that have occurred in 
a period of more than half a century, commencing 
with the controversy between the states (then colo- 
nies,) and the mother country, which eventuated in 
their independence, and, finally, in the establishment 
of the present government on the true principles of 



1 



LIFE OF NATHANIEL CHIPMAN. 207 

freedom — a period agitated and occupied with revo- 
lutions and revolutionary movements, which have ex- 
tended, with various effects, to all the civilized nations 
of Europe, and the whole of the American continent, 
and which have produced a more thorough investiga- 
tion and discussion of the social and individual rights 
of man, and the nature and principles of free govern- 
ments, than is to be found in any other age, indeed, 
than in all preceding ages within the reach of history. 
With what success the work has been executed must 
be left to the decision of the public. Such a work 
adapted to the civil and political institutions of the 
country has been hitherto a desideratum, which it was 
the author's ambition to supply. If, however, he has 
failed in this, it will be a sufficient consolation, should 
what he has attempted excite some writer of more 
leisure, and of a higher order of talents, to accom- 
plish the task, although now at the advanced age of 
fourscore, he can hardly expect, personally, to enjoy 
that consolation. 

" The author has, throughout the whole, endeavored 
at the investigation of natural principles, and to fol- 
low truth wherever it led ; he has several times been 
induced to differ from the opinions of some writers of 
the first talents and reputation. 

" Although he has examined these opinions with the 
freedom of philosophical discussion, it has been his 
constant aim to treat the writers with that decent re- 
spect which they merit from every lover of science. 

" As to the manner and style of the work, if it should 
be thought that they savor of former times, the apo- 
logy is, that the author himself more properly belongs 
to an age that is now past." 



208 LIFE OF NATHANIEL CHIPMAN. 

The author has, in a very lucid manner, accom- 
pUshed what he proposed in the preface. He has 
analyzed the moral and social nature of man, and 
thence deduced the principles which he at the foun- 
dation of our free institutions. It seems, therefore, 
that the work is a proper foundation for instruction in 
the science of free government. 

He had several years before left his practice at the 
bar, and dechned all public business on account of 
his increased deafness, hving in retirement, undis- 
turbed in the exercise of his intellectual powers. I 
find by his papers, that he had turned his attention to 
various branches of science, but prepared nothing for 
publication, except on the science of law and gov- 
ernment. 

Nathaniel Chipman married Sarah Hill, of Tin- 
mouth, by whom he had five sons and two daughters. 
His eldest daughter, Laura, married Dr. John Brown- 
son, who settled in Western New York, where he 
died some years since, and where his widow and 
children now reside. His youngest daughter, Evelina, 
is unmarried. 

His eldest son, Henry Chipman, was educated at 
Middlebury College, and maintained a high standing 
as a scholar. He afterwards studied law with Charles 
Cotesworth Pinckney, of Charleston, South Carolina, 
and settled in Waterborough, in that state, in the prac- 
tice of law, where he married and resided a number 
of years. At length, being disgusted with slavery, and 
as his wife, although the daughter of a planter, and 
accustomed to slavery from her infancy, was de- 
sirous to live in a free state, where they should not 



LIFE OF NATHANIEL CHIPMAN. 209 

be compelled to employ slaves, he moved to Detroit, 
in the then territory of Michigan. He was soon after 
appointed a judge of the United States court for that 
territory, and is nov/ a judge of the municipal court 
in Detroit. JeflVey Chipman, his second son, re- 
ceived an academic education, married and settled in 
Canandaigua, in the state of New York, where he 
still resides. Edwin Chipman, his third son, studied 
law with his brother Henry, in South Carolina, was 
admitted to the bar, and commenced practice in con- 
nection with his brother. But he soon relinquished 
the practice, and undertook to erect mills on a stream 
in the vicinity of Waterborough. Being nearly desti- 
tute of capital, he soon found himself embarrassed 
with debts, which he was wholly unable to pay. 
While in this situation he was all at once missing, 
and under circumstances which rendered it extremely 
doubtful whether he had absconded, or had been 
drowned in the stream on which he had been erecting 
mills. But year after year having passed away, and 
nothing heard from Edwin, either by his father or 
any of his relatives, his father became satisfied that 
he was not living, and gave him up as lost, until Oc- 
tober, 1838, when the postmaster in Rutland, Ver- 
mont, received the following letter : 

Weturapka, Coosa County, Alabama, August 10, 1838. 

Sir, — Not having the pleasure of your acquaint- 
ance, or even of knowing your name, I can address 
you only by your official appellation on a subject 
which intimately concerns another individual. The 
object of the application is to obtain precise informa- 



210 LIFE OF NATHANIEL CHIPMAN. 

tion respecting the Honorable Nathaniel Chipman. 
As the family was of some distinction, it is probable 
you can, without much trouble, ascertain their present 
situation, and where the different members of the 
family reside, and whatever you may learn interesting 
to a near relative. It is probable that Judge Chip- 
man and Mrs. Chipman are both numbered with the 
dead ; for, if living, they must have reached a very 
advanced age. As Judge Chipman once resided in 
Rutland, and not far from that place when the indi- 
vidual referred to was last heard from, it is proba- 
ble that a person in your situation may know some 
member of the family, or give such information as 
will enable the person interested to correspond with 
him by letter. By making the necessary inquiries, 
and communicating the resulting information to me 
at Wetumpka, Coosa county, Alabama, you will con- 
fer a pecular favor on the individual at whose request 
I trouble you with this communication. 

John R. Steele. 

Postmaster, Rutland, Vermont. 

P. S. As I may be from home when your letter 
shall reach Wetumpka, please direct to John R. 
Steele, care of Col. Edward Cullen, Wetumpka, 
via Augusta, Georgia, and Montgomery, Alabama. 

J. R. Steele. 

The foregoing letter was, by the postmaster, put 
into the hands of the late Colonel Gove, of Rutland, 
who, suspecting that it was written by the lost son, 
Edwin, immediately wrote agreeably to the request of 
John R. Steele, stating such facts in relation to Judge 



UFE OF NATHANIEL CHIPMAN. 211 

Chipman and his family, as then occurred to him. A 
few days after this, Judge Chipman was at Rutland, 
and on reading the letter from John R. Steele, was 
satisfied that Edwin yet lived, and wrote the letter ; 
and immediately wrote to John R. Steele, giving the 
desired information relating to himself and family ; 
carefully avoiding anything which might disclose the 
suspicion that he was writing to his son Edwin. This 
letter, with that written by Colonel Gove, were both 
delivered, at the same time, by the postmaster, and 
Edwin wrote an answer to the letter from Colonel 
Gove, who forwarded it to Judge Chipman, and one 
week afterwards, and after the high degree of excite- 
ment had subsided, which had been produced by the 
intelligence that his father lived and enjoyed a re- 
markable degree of health for a man of his age, and 
by direct intelligence from his loved native village, 
rendered more dear to him by his long exclusion from 
it, and by a total want of intelligence from it for so 
many years, — he wrote the following letter to his 
father. 

Wetumpka, Coosa County, Ala., Oct. 10, 1838. 

Dear Father — On the third instant, at the post- 
office in this place, two letters from Vermont were 
handed to me, one from yourself, the other from Jesse 
Gove, Esq., in answer to a letter addressed to the 
postmaster at Rutland, in the name of John R. Steele. 
My feelings cannot be described, when at the sight of 
the superscription of one of the letters, I recognized 
the hand-writing of my father, who I had believed was 
not living. Your letter gave me the only intelligence 
which I have had from any of my relatives, since I 



212 LIFE OF NATHANIEL CHIPMAN. 

left South Carolina, in 1822. I did, indeed, hear in- 
directly, that you were about to move to the territory 
of Michigan. Brother Henry, I knew, had deter- 
mined on moving to the north, without having, when 
he left Carolina, on his second northern tour, fixed 
on any particular location, so that I knew not where 
to address any individual of my family. Some few 
years after I left Carolina, I heard that brother Henry 
was in the practice of law, at Charleston, in com- 
pany with a Mr. Duncan, and I addressed a letter to 
him at that place ; and receiving no answer, I wrote 
to the postmaster at Charleston, but he took no 
notice of the letter. I then wrote to the postmaster 
at Middlebury, hoping that uncle Daniel Chipman, or 
some of his family might then reside there, and that 
through that channel I might be enabled to corres- 
pond with some of my own family ; but I received no 
answer to this letter, and all my attempts to open a 
correspondence with some of my family having proved 
fruitless, and thinking that in all human probability 
my parents were not living, I made no further at- 
tempts for several years to open a correspondence 
with them. But at length reflecting that our ances- 
tors were somewhat noted for their longevity, I dwelt 
upon that fact until it produced a considerable degree 
of confidence that my parents were still living, and 1 
determined to make one more effort to open a cor- 
respondence with them, and I have great reason to 
be thankful that I have been successful. I presume 
you know the circumstances under which 1 left the 
vicinity of Waterborough, in South Carohna. I 
started without a cent of money — my horse, saddle 



T.IFE OF NATHANFKf, (HIFMAN. t^l3 

and bridle, and wearing apparel, were my all. I rode 
seventy-five miles in twenty-four hours. 1 stopped 
in Barnwell district, and worked at the blacksmith's 
trade, as a journeyman, one year. I worked in that 
district and in Hamburgh, and in Augusta, Georgia, 
about four years. I taught school in Barnwell one 
year, during which year I married a Miss Thomson, 
by whom I have had five children, four of whom are 
living. Soon after my marriage, I removed to Mont- 
gomery county, Alabama, and carried on the black- 
smith's business, realizing a handsome profit. I also 
made some money by speculating in prairie lands. 
But the delicate health of my wife, and several years 
sickness suffered by myself, compelled me to sell my 
property to pay my debts. In the year 1836, I left 
my family in Montgomery county, and went to Coosa 
county in the Creek country, with a stock of goods to 
trade with the Indian and white settlers. After a few 
months the Indians became troublesome, and meas- 
ures were taken to protect the settlers. The Mont- 
gomery regiment was called out, in which I held a 
commission of lieutenant colonel — and had the com- 
mand of the forces until the Indians were subdued, 
when I moved my family to Coosa county, where 1 
now reside. During the last two or three years I 
have accumulated considerable property, but the mo- 
ney pressure has rendered it difhcult to close my bu- 
siness without a sacrifice. Still I hope to get througii 
without much loss. I am at present engaged on the 
railroad between the Chatahoochy river at West point, 
and the Alabama at Montgomery, and am located, at 



214 LIFE OF NATHANIEL CHIPMAN. 

present, near Fort Decatur, on the Talapoosa river, 
in Macon county. 

You say that my dear mother has been dead seven 
years. My mind has long been prepared for the sad 
tidings, but the reflection that her days had been 
embittered by my mysterious absence, and the uncer- 
tainty of my fate, has lain heavily on my mind. I 
will not undertake to describe my sufferings whenever 
I have realized the intensity of her parental affection, 
and that her mind was somewhat inclined to melan- 
choly foreboding. 

Mr. Gove writes that Dr. Brownson is dead, and 
that Laura is keeping house with her children in Wes- 
tern New York. Do write particularly respecting all 
my brothers and sisters and their children, as far as 
your knowledge of them extends, and remember me 
affectionately to them all. I have four children living. 
Theodore, ten years of age ; Oscar, eight ; Evelina, 
five, and Edwin Chipman Cullen, aged two years — 
all healthy and promising. When I left Colleton dis- 
trict, in South CaroHna, I adopted the name of Ed- 
ward Cullen, and am known by no other name in 
Alabama. The object of adopting that name, and 
working at the blacksmith's trade, was to prevent the 
possibility of discovery. No letter can reach me un- 
less directed to that name, Wetumpka, Coosa Co., 
Alabama. It has always been my intention, as soon 
as I could acquire the means, to pay off" all demands 
against me, to resume the name of Edwin Chipman 
by legislative enactment, which would be necessary 
to legalize my land titles. 

Your affectionate son, 

J!dward Cullen. 



LIFE OF NATHANIEL CHIPMAN. 215 

Nathaniel Chipman had a strong constitution, and 
although considerably impaired by an intense applica- 
tion to his studies and a want of exercise during his col- 
legiate course, a more active life in the army restored it. 
During the whole of his after-life, he was blessed with 
a vigorous constitution and a continued state of health, 
interrupted only by occasional attacks of the rheuma- 
tism, by which he suffered until about seventy years 
of age, when, as he remarked, while I was suffering 
under a severe attack of that complaint, that he had 
outgrown, or rather outlived his rheumatism, and it 
might be the case with me. During the remainder 
of his life he enjoyed a remarkably uniform state of 
health until his last sickness. On the 13th of Febru- 
ary, 1843, he was violently attacked with a conges- 
tion and inflammation of the lungs, which put a 
period to his existence on the fifteenth of the same 
month, being in the ninety-first year of his age. 

Dr. Clarke, the attending physician, remarks, "that 
he was greatly distressed for breath ; the most part 
of the time unable to speak, and at times appeared to 
be deprived of his reason ; yet, at intervals, when he 
appeared conscious of his situation, the mind of Judge 
Chipman showed itself in all its native placidity and 
calmness." 

Having, in the preceding pages, portrayed the 
character of Nathaniel Chipman as a public man, 
and in doing so, set forth his qualities, both intellect- 
ual and moral, by which he was enabled to fill the 
various public stations in which he was placed, with 
so much honor to himself and usefulness to his coun- 



216 LIFE OF NATHANIEL CHIPMAN. 

try, I shall conclude with a few brief remarks respect- 
ing his temper and disposition, which contributed so 
much to his happiness through a long life. His pas- 
sions were naturally strong, as is too often the case 
with men of a high order of intellect, but very early 
in life he so perfectly subdued them, that they never 
thereafter gave him the least disturbance. He was 
never known to harbor a spirit of revenge or ill-will 
against any human being. He used to remark that it 
was very singular that so small a portion of men could 
ever learn that a spirit of revenge and hatred of oth- 
ers, only rendered themselves unhappy. The good- 
ness of the Creator, he said, was most clearly mani- 
fest, by his having so constituted man that he was not 
necessarily made unhappy by the enmity of others. 
Were it so his happiness would depend not on his own 
good disposition, but on the disposition of others, over 
which he has no control. But the benevolent Creator 
has placed it in the power of each individual to cherish 
feelings of benevolence and good-will towards even 
his enemies, and so never be rendered unhappy by 
their enmity. Although most distinguished for his 
intellectual powers, and the fund of general know- 
ledge which he had acquired, yet he had also a vein 
of wit and humor, which rendered him a pleasant -as 
well as instructive companion. He was also a man 
of very tender feelings, and deeply sympathized with 
the afflicted. In answer to a letter which I wrote him 
in October, 1840, giving him information of the loss 
of our daughter Mary, he wrote, " We had been in- 
formed by vSusan Stowell, who was here on a visit last 
week, of the death of your daughter Mary. In this 



LIFE OF NATHANIEL CHIPMAN. 217 

atHiction I sincerely sympathize with you and lier 
mother. I have, in the course of my Hfe, lost three 
children, but all in infancy. 1 feel that this is very 
different from the loss of a child in the bloom of life, 
and the subject of a long and cherished affection. I 
W3LS much concerned for the effect that this sudden 
loss might have on you, as well as her mother, in 
your feeble state of health, but am happy to learn that 
you endure the affliction with a becoming degree of 
fortitude and resignation." 

In answer to a letter which I wrote him in March, 
1841, giving an account of the death of our eldest 
daughter, Mrs. Linsley, he wrote, — "I received your 
account of the loss of a second beloved daughter, in 
the course of a few months, with deep sympathy. I 
feel it not the less sensibly from a recent dispensation 
of Providence, in my own family. I had just received 
information of the death of my son Edwin, so long 
lost, and lately found — as it were, restored from the 
dead. I had been induced to beheve that he was no 
lono-er hvins from his lonj? silence, having received 
no answer to three letters which I had written him 
since September, 1 839. About the first of last month 
I received information from a gentleman who lived 
not far from Edwin's residence, that he came to his 
death about fourteen months before, being caught and 
instantly killed by a machine which he had invented, 
and with which he was levelling timbers on a railroad. 
Though the event was expected, the unexpected man- 
ner of his death gave poignancy to the effect on my 
mind. But I have long since learned to submit with- 
out a murmur to the dispensations of Providence, be- 



218 LIFE OF NATHANIEL CHIPMAN. 

lieving that they are all in mercy, however it may 
seem to us in the moment of bereavement." This was 
not with a mere compliance with customary forms — 
possibly he too often disregarded customary forms — 
but it was written from a most abiding sense of a su- 
perintending Providence, and of his accountability for 
all his thoughts and all his actions, and as he habitu- 
ally pursued the dictates of an enlightened conscience 
he never had occasion to conceal his sentiments — 
he never learned how to put on any disguise, but al- 
ways expressed his sentiments openly and frankly. 
How different from many of the present political gen- 
eration ! 



APPENDIX 



I 






No. I. 



. A DISSERTATION 

ON THE ACT 

ADOPTING THE COMMON AND STATUTE LAWS 

OF ENGLAND. 



28 



DISSERTATION. 



The reasons for passing this act are contained in the fol- 
lowing preamble. 

" Whereas it is impossible, at once, to provide particular 
statutes, apphcable to all cases wherein law may be neces- 
sary for the happy government of this people : And whereas 
the inhabitants of this state have been habituated to conform 
their manners to the English laws, and hold their real estates 
by English tenures." 

By the first section it is enacted, " That so much of the 
common law of England as is not repugnant to the constitu- 
tion, or to any act of the legislature of this state, be, and is 
hereby adopted, and shall be, and continue to be, law within 
this state." 

By the common law of England, exclusive of positive 
laws enacted by statute, are understood those rules and 
maxims, by which decisions are made in their coiurts of law, 
whether in relation to the mode of prosecuting a right, or to 
the right itself — rules and maxims, which have been there 
adopted, " time whereof the memory of man runneth not to 
the contrary." For a knowledge of the common law of 



224 APPENDIX. 

England we must have recourse to the history of their law 
proceedings, handed down in almost innumerable volumes 
of reports, and to the writings of the sages of then- law. 

The foregoing statute, adoptmg the common law of Eng- 
land, in tliis state has rendered a knowledge of that law in- 
dispensable in our courts. This statute expressly limits the 
adoption of the common law, to so much as is not repug- 
nant to the constitution, or any act of the legislature of this 
state. By this limitation, all that part of the common law, 
which relates to the royal person, family, and prerogative ; 
all which relates to the peerage, their privileges and preemi- 
nence, is excluded. We have, strictly speaking, no common 
law officers; all the offices in this state are established, 
and the duties, in general terms, pointed out by the consti- 
tution, or by statute. The terms and expressions, adopted 
in both, are frequently derived from the common law. The 
office of sheriff, for instance, is contemplated in the constitu- 
tion, and estabhshed by statute. His power and duties are 
pointed out, generally by statute : these are, mostly, the 
same as those of a sheriff in England ; yet these powers 
and duties are derived from the constitution and statutes of 
this state, and, limited by them, the manner in which these 
shall be exercised, if not pointed out by our laws, must be 
learned from the common law of England, so far as adopt- 
ed here ; as, the manner of an arrest — what shall be deemed 
an escape. 

From the different constitution of our coiu-ts, the English 
mode of practice can, in very few instances be adopted ; 
but their rules may, in most instances, be appUed in deter- 
minations on pleas and pleadings; in the construction of 



APPENDIX. 225 

words and of laws ; in almost every instance, which can 
arise in our state of society, between individuals, on torts, 
frauds, or contracts. 

It will be much more restricted in cases arising on our 
landed titles. Many of those titles were derived from the 
king of Great Britain, and many conveyances made, while 
under British laws and government. Their validity and 
operation must be decided by the laws under which they 
were derived and made. But oiu- landed property has suf- 
fered a great alteration by the revolution. It has been 
changed in the hands of the owners, from estates in fee, into 
allodial estates, holden no longer even in idea of a supe- 
rior. 

The mode of descent, and right of inheritance, depend 
entirely on our statutes ; while the degrees of affinity and 
consanguinity are to be learned from the common laws of 
England. The whole chapter of entails is abridged — per- 
haps expimged — in a word all the consequences of the feu- 
dal teniure are abolished — a tenure once very general in 
Great Britain, the traces of which are still visible in all their 
laws relative to landed property, and which introduced rules 
and maxims, full of absurdity and oppression — rules and 
maxims which there stiU operate, more or less, although the 
reason of then- introduction has long ceased. That part of 
the common law, which arose from the adoption of the canon 
law, has shared the same fate. 

I have given these instances by way of example only. It 
is not my design to enumerate every instance, in which the 
common law of England is to be apphcd in this state, or in 
which it is excluded or restricted. It will be of more use 



226 APPExNDIX. 

to discover some general principles, which may enable us 
to distinguish properly in our appHcations. 

The common law of England is a system of rules, sup- 
ported by precedents, handed down from remote antiquity. 
These precedents have, by the body of the law, as is common 
enough with professional men, been held in too great vene- 
ration. 

A number of precedents, in point, however obscm'c or un- 
certain the principles upon which they were founded, have 
been held fnUy decisive of a similar question ; and yet many 
of these precedents were made at a time, when the state of 
society and property were very different from what they 
are at present ; in an age when the minds of men were fet- 
tered in forms ; when forms were held to be substances, and 
abstractions real entities. Technical reasoning and un- 
meaning maxims, of coiuse, frequently supphed the place of 
principles.' 

^ '^ Solvatur eo ligamine, quo Ugatur, ^^ Miex^Wy, "Let it be loosened 
by the same tie by which it is bound." This pompous, unmeaning 
maxim was introduced from the civil law. Tying and untying, binding 
and loosing, are different operations, connected only by the subject, and 
may be performed by different means and different powers. There is no 
kind of similarity between them. By a forced application of this unmean- 
ing maxim, many an obligor has been condemned to a second discharge 
of his obligation, although able to make indubitable proof of a former dis- 
charge, differing from his contract only, in some immaterial circumstance, 
to the full acceptance of the obligee ; and this because he could not make 
his proof by an instrument of the same kind with that by which he was 
bound. Lord Kames has somewhere nearly the same observations. 

Let me here add an instance of a different kind. The whale was a royal 
fish. The head was allotted to the king ; the tail to the queen. Lex est 
suinma ratio. Law is the perfection of reason. A reason must be 
given for this allotment. Say the ancient lawyers with much gravity, 



APPENDIX. 227 

Society was in a state of melioration. Manners and sen- 
timent progressed towards refinement. Intercourse between 
individuals, as well as nations began to be extended, and in 
same measure, seciu-ed the rights of property, and the rights 
of commerce were investigated, and better understood. 

The clouds which had long hung over the reasoning facul- 
ties, began to be dispersed ; principles were examined and 
better established. Cessante raiione, cessat et ipsa lex. When 
the reason of a law ceases, the law itself ceases, was adopt- 
ed as a maxim of the common law ; for in those times, 
nothing could be decided or altered, without a precedent or 
a maxim. By the application of this maxim some prece- 
dents which were originally absurd, and some which had 
become inapphcable, through a change of times and circum- 
stances, were set aside. The progress, however, was slow. 
Men correct or give up with reluctance those things which 
have cost much pains in learning. Many such precedents 
had, hoAvever, become a rule of property. These could not 
be shaken by the judges, without the greatest injustice to 
individuals. 

Upon rules and precedents, .Judge Blackstone has the fol- 
lowing observations : " Not that the particular reason of 
every rule in the law can, at this distance of time, be always 
precisely assigned ; but it is sufficient that there is nothing 
in the rule flatly contradictory to reason ; and the law pre- 
sumes it well founded." And again, " Precedents are to be 
followed, unless flatly absurd, or unjust: for though llieir 

"The tail was given to the queen to furnish her wardrobe with whale- 
bone;" but for this, as whalebone is found only in the nnouth of that 
fish, she must have been still beholden to the king. 



228 APPENDIX. 

reason be not obvious at first view, yet we owe such a def- 
erence to former times, as not to suppose they acted wholly 
without consideration." This might perhaps be well enough 
in England. But the principal reasons, there, for so strict 
an observance of precedents, are that the rules of law may, 
from their permanent uniformity, be the better known ; and 
lest by too easy a departiu'e, judges might unwarily disturb 
rights, or property acquu-ed, transmitted or holden on the 
faith of such precedents. If no reason can be assigned, in 
support of rules or precedents, not already adopted in prac- 
tice, to adopt such rules is certainly contrary to the principles 
of our government, and the spii'it of our laws, which admit 
not of arbitrary rules, or of arbitrary decisions, even in mat- 
ters indifferent. 

We can readily suppose that former ages did not act 
without consideration ; we can beheve them to have acted 
upon principles and reasons, which arose out of their state 
of society ; but it would be too great a deference to concede 
to them, who are now no way interested in the concession, 
or affected by it, the principles and reasons, which arise out 
of the present state. It is much more just to them, and 
to ourselves to suppose, that good reasons, there, existed, 
which from a change of circumstances have long since 
ceased.' 



' Determiaations of law, though they cannot always go the full extent, 
ought never to stand opposed to the nicest sense of moral obligation, to 
the principles of the government, or what ought to be the spirit of its 
laws. In adjusting these, we should act more wisely, if instead of enter- 
taining a blind veneration for ancient rules, maxims and precedents, we 
could learn to distinguish between those which are founded ou the prin- 
ciples of human nature in society, which are permanent and universal. 



APPENDIX. 229 

It was a rule, that if a statute be made, altering the com- 
mon law, and a statute come after, repealing the former 
statute, the common law revives. But it ought to be under- 
stood with this hmitation, if the common law be founded on 
principles still existing in the present course of justice.^ 

Legal right and Avrong, particularly in criminal jiurispru- 
dence, have an intimate relation to the constitution, princi- 
ples, and circumstances of the government. There Avill be 
a coincidence between the principles of the government, the 
spirit of its criminal laAv, and the mode of interpretation and 
execution. 

The British government, which has ever been a mixture of 
monarchy, aristocracy, and democracy, has principles pecu- 
liar to that government. The monarchical principles have 
a silent, but uniform influence on their criminal jurispru- 
dence,' 



and those which are dictated by the circumstances, policy, manners, 
morals and religion of the age. 

'Many instances might be given of the influence of feudal, monarchical, 
and aristocratical principles on the decisions of the English law. The 
following are selected as examples. 

Homicide per infortunium ; or the killing of a man by misadventure, is 
held to be a crime. The manslayer is indeed pardoned of course; but he 
forfeits his goods to the king; because, says the law, the king has lost a 
subject. This is evidently of feudal original. The forfeiture was at 
first intended as a reparation to the king for the loss of a vassal. 

The absurd doctrine of deodands, which still disgraces the English 
laws, was derived from the superstition of the times ; but is now consid- 
ered as a prerogative right. 

By attainder, the blood of the person attainted is supposed to be cor- 
rupted, and to have lost every inheritable quality. The king may pardon 
the person attainted, and make him a new man, but cannot restore his for- 
mer inheritable connections, or prevent an escheat to the lord. 

A son born before the attainder shall never inherit to this new man ; 
29 



230 APPENDIX. 

At the time when the common law was growing into a 
system by means of precedents, the judges were solely de- 
pendent on the crown. Monarchy procures obedience no 
less by fear than by the principle of honor. The highest 
orders in the goverrmient, and the most aspiring characters, 
are influenced by the prospect of attaining honors. The 
multitude are restrained by fear. The manners of people are 
rough, and httle short of savage. From all these circum- 
stances their punishments become, in many instances, shock- 
ingly severe. Whether it be owing to the force of habit, to 
the influence of the monarcliical and aristocratical principles 
in their government, or both, modern refinement of man- 
ners, modern dehcacy of sentiment, has prevailed very Httle 
to soften that severity. Their laAvs, like those of Draco, may 
emphatically be said to be written in blood. They have 
about one hundred and fifty capital offences. These are, 
mostly, created or confirmed by statute ; but some are still 
crimes at common law only. 

The government of this state is that of a democratic re- 
pubHc. The principle of this government, by some called 
virtue, is a sentiment of attachment to its constitution and 
laws. This principle dictates moderation in the enacting, 
in the interpretation and execution of its laws. Here there 



his after acquisitions shall rather escheat. An after-born son may inherit ; 
but not if there be any former son living, or heir of such son. 

The following rule, which was adopted in a matter of mere civil right, 
is of the same feudal origin. 

The brother of the half-blood shall never inherit to the brother of the 
whole blood. The fee shall rather escheat to the lord ; because, by the 
feudal constitution, the descent is confined to the whole blood of the first 
feudatory. 



APPENDIX. 231 

is, perhaps, some clanger, lest, through the influence of pre- 
cedents, the courts should deviate from the spirit of modera- 
tion, the true spirit of our laws. I should lay it down as an 
unalterable rule, that no court in this state ought ever to 
pronounce sentence of death upon the authority of a common 
law precedent, without the express authority of a statute. 
" All fines," says the constitution, " shall be proportioned to 
the offences." This is not to be understood of pecuniary 
mulcts only. The word fines is here to be taken as synony- 
mous to pimishments. Taken m this large sense, the clause 
is consonant to the principles and spirit of oiu* government 
and laws. 

Actions which are criminal of England may not be so in 
Vermont. Civil crimes become such by a certain relation 
to the society where they are committed. 

From the difference of the relation in different societies, 
the same action may be either not criminal at all, or criminal 
in a different degree. Here, cessante ratione, ccssat ct ipsa 
lex, ought to be applied, whether to determine an action not 
to be criminal, or to be criminal in a less degree. Nay, the 
principles of the common law, which are the true principles 
of right, so far as discoverable, are competent to decide on 
the criminaHty of an action, which shall be notoriously and 
flagrantly injurious to society in this state ; although such an 
action had never been done, or even hcEird of in England ; 
and to declare a punishment, but short of death. 

Lord Mansfield was powerfully attached to the monarchi- 
cal and aristocratical principles of the British government. 
Whenever these intervened in a cause, they had groat influ- 
ence on his reasonings. In other questions merely of a civil 



232 APPENDIX. 

nature, he Avas a great and a good judge. No judge, perhaps, 
in that country, ever had a more thorough knowledge, both 
of the principles and precedents of the common law. His 
judicial opinion may be considered as a coirmion law prece- 
dent in the construction of this statute. " The law of Eng- 
land " says he, " would be an absiurd science mdeed, were 
it founded upon precedents only. Precedents serve to illus- 
trate principles, and to give them a fixed certainty, but the 
law of England, exclusive of positive laAv, enacted by stat- 
ute, depends upon principles ; and these principles run 
through all the cases, according as they fall in \vith the one 
or the other of them." 

We may then lay it doAvn, that this statute gives the citi- 
zens of this state the rules, maxhns, and precedents of the 
common law, so far as they serve to illustrate principles — - 
principles only, which, from the situation of society with us, 
exist in this state ; but does not impose upon them those 
principles which, from the particular circiunstances of that 
government, exists only in England. 

The act goes on to recite that, " Whereas the statute law 
of England is so connected and interwoven with the com- 
mon law, that oiu* jiu'isprudence would be incomplete with- 
out it ; therefore it is enacted, that such statute laws, and 
parts of laws of the kingdom of England and Great Britain, as 
were passed before the first day of October, A. D. 1760, for 
the explanation of the common law, and which are not repug- 
nant to the constitution, or some act of the legislature, and 
are applicable to the circumstances of the state, are hereby 
adopted and made, and shall be, and continue to be, law 
within this state, and all courts are to take notice thereof 
and govern themselves accordingly." 



APPENDIX. 233 

In this section, the words " and are apphcable to the 
circumstances of the state " render any comment unneces- 
sary. Indeed, though these words are not expressed in 
the former section tanien tacite infunty they are contained 
in sense. 



4 



No. II. 



OF LAW IN GENERAL. 



LECTURE I. 



1 



LECTURE FIRST. 



In entering upon a course of legal instruction, it will be 
proper to take a general view of the origin and nature of 
law, as well as to define the limits withm which we are to 
proceed. 

Judge Blackstone tells us that, " law in its most general 
comprehensive sense, signifies a rule of action ; and is ap- 
plied indiscriminately to all action, whether animate or inani- 
mate, rational or irrational." Such is the sense which gen- 
eral custom has annexed to the term. Thas when we speak 
of the laws of nature in reference to the system of the universe 
that comes under our knowledge, we mean those laws by 
which all its motions and operations in all its parts are pro- 
duced and directed in an unceasing series, regular, orderly, 
and uniform. In these laws of nature we comprehend not 
only those laws, which govern mere brute matters, whether 
organized or unorganized, animate or inanimate, but those 
moral laws which govern the actions of man as an intelhgent 
being. Between the former and the latter there is, however, 
an important distinction. In the former, whether we suppose 
with some that the Creator in the formation of the universe, 
30 



238 APPENDIX. 

impressed on matter certain principles, from which it cannot 
depart, without ceasing to exist, or with others, that according 
to a predetermined plan, the movements of the whole system 
and every operation, even to the most minute in the physi- 
cal world, are carried on by an immediate exertion of the 
Divine agency ; yet here the law as it respects the subjects, 
is a law not of obligation, but of necessity. The subjects 
are mere passive instruments, without consciousness, will, 
intention, or power of resistance. No moral consequences 
are attached. But the latter, the law of intelligent being, 
by which I mean the law of human actions, is a law of ob- 
ligation, not of necessity ; not physical, but moral. Man 
has indeed a body consisting of matter, Avonderfully organ- 
ized, and endued with animal life. Considered as an animal, 
he is subject to the physical laws of which we have been 
speaking ; but he is also furnished with mind, with intelli- 
gence, with a faculty by which to attain the perception of 
moral relations, in which he finds himself placed ; he is con- 
scious of an obligation, or perhaps we shall be as distmctly 
understood if we say, he intuitively perceives an obligation to 
perform a certain act, or to pursue a certain course of action. 
This, which we may call a moral perception, is found to be 
common to the whole human race, although more or less 
clear ; more or less comprehensive in different men, according 
to their different susceptibihties, and opportunities of improve- 
ment. Hence is derived the general notion of a moral 
law, which, by way of eminence, is called natural law, or 
the law of nature. But this is not all which goes to con- 
stitute the binding force of a law. There is further associ- 
ated the notion of a Supreme Power, rightfully ordaining 



I 



1 



APPENDIX. 239 

the law, and requiring its observance. Without this I 
cannot conceive how the obligation can exist. There might 
arise a question of utihty, but I do not perceive how a ques- 
tion of duty can be raised. In the cause of natural law, 
that Supreme poAver is perceived, and acknowledged to be 
the gTeat Creator of the universe, Avho made man, and estab- 
lished him in a situation to sustain those relations, individual 
and social, from which his duties result, and which point out 
to him the moral laws of his nature. This view of the 
subject suggests the propriety of an observation of Mr. 
Christian, the learned annotator of the Commentaries, that 
law, in its strict sense, is applicable only to human conduct, 
or at least to the conduct of subordinate intelligences. 
Every other application is metaphorical. In all cases in 
physics, with strict propriety, for law, might be substituted 
qaality, property, or peculiarity. We sometimes speak of 
the laws of Deity, but certainly in a sense very different 
from that in which it is applied to man, or any of his other 
creatiures. When we say that the Deity carries on his ope- 
rations by certain laws, we mean this only, that they are 
carried on with wisdom, regularity, and order, consummate 
and undeviating. His will only can be his law. The idea 
of a superior ordaining the law and requiring obedience, 
cannot be here admitted without obscurity and even impiety. 
With as little propriety can we admit of the phrase when we 
apply the word law to the operations of nature, or to the 
works of art, as when we speak of tha laws of vegetation, 
of attraction, of mechanism, we certainly inchide the idea of 
a superior Power, who has established the principles of ope- 
ration in each case, through a constant and regular chain of 



240 APPENDIX. 

causes and effects, to the attainment of the end ; but here 
we are forced, instead of obhgation and obedience, which 
inckides volition, to admit necessity ; and to exclude the 
ideas essential when we use law as apphcable to man, of 
disobedience and punishment. That the creature is neces- 
sarily subject to the Creator ; that all created intelhgences 
endowed as man is, with free will, are under the most 
perfect obhgation to obey the will of the Creator, upon 
whom they are absolutely dependent, is an intuitive truth, a 
subject of direct perception to every moral being capable of 
understanding the proposition. It is a first principle in 
Ethics, and, like every other first principle, is not left to be 
discovered by any mere process of reasoning. The great 
business of reason is to assist and direct in the application 
of the principle to human conduct. The will of the Creator 
is in like manner discovered in those relations which he was 
pleased to establish in the moral system of man, by an intu- 
itive perception of their result in moral obligation, the duty 
of obedience. The Divine will cannot be supposed for an 
instant without a reference to these relations ; much less can 
it ever be supposed to stand in opposition to them, or to 
reverse the result. 

We ought here to take notice of an inacciu*acy of Judge 
Blackstone's. He has said that " God has not perplexed 
the laAv of nature with a multitude of abstracted rules and 
precepts, referring merely to the fitness or unfitness of 
things, as some haxe vainly surmised, but has graciously 
reduced the rule of obedience to one paternal precept, 
' That man should pursue his own true and substantial 
happiness.' " This, taken in the sense of the author, is, it 
appears to me, inaccurate at least. 



APPENDIX. 241 

There may be, and sometimes is, a complexity in the 
relations, a difficulty in arranging them, and giving to each 
its due weight and importance in the Eissociation. When 
the arrangement is properly made, the result is clear, the 
perception of Avhat is duty in the case is intuitive, Avithout 
any reference to the supposed fitness or unfitness of things. 
But that man should pursue his true and substantial happi- 
ness, cannot with propriety be called a rule or precept. 
Man's happiness is the great end proposed by all the pre- 
cepts, the sure end to be obtained by obedience. To call 
it a precept, is therefore to confound the law with the end 
sought to be effected by the law. 

In the view which we have taken of the subject, the law 
of nature has its foundation in the will of God. It is his 
will manifested to man in his works, and is, as Judge 
Blackstone justly observes, " binding over aU the globe, in 
aU countries, and at all times. No human laws are of any 
validity, if contrary to this ; and such of them as are vahd 
derive all their force, all their authority from this original." 

We must not here omit the law of revelation. From the 
imperfection of human reason, and the moral powers of 
man, he is necessarily subjected to imperfect views and er- 
roneous conceptions. God has therefore been pleased, by 
an immediate revelation, to discover to man those laws 
and these duties, a knowledge of which he could not at 
all, or but imperfectly, attain by unassisted reason ; and, 
although it has been justly observed that the laws of reve- 
lation are found, on comparison, to be a part of the original 
laws of nature, tending, in all their consequences, to the 
felicity of man, yet it ought to be added that, as revelation 



242 APPENDIX. 

discovers to man more clearly his relation to his Maker, 
and the duties thence arising ; opening to him the certain 
view of an eternal existence beyond the present state ; and 
pointing out the means of securing his happiness through- 
out that existence ; not only consistent with, but promotive 
of his happiness here ; it offers considerations which must 
somewhat affect what we have called the original laws of 
nature — considerations which ought to enter into every 
combination of moral relations, and proportionally to influ- 
ence the duties thence resulting. 

Thus explained, the laws of nature are the only true 
foundation of all human laAvs. Judge Blackstone asserts 
the same thing, and that no human laws should be suffered 
to contradict these laws of nature ; and then adds, by way 
of explanation, or rather by way of exception to the first 
general proposition, " There are, it is true, a great number 
of indifferent points, in which, both the divine law and the 
natural leave man at his own hberty, but " which are found 
necessary to be restrained within certain hmits." 

Further on, he observes, in effect, that in those matters 
which he calls indifferent, human legislators have scope and 
opportunity to interpose, and to make that unlawful which 
was before lawful ; and in treating of the obligation of posi- 
tive laws, he considers those which are made concernmg 
these indifferent matters, as he calls them, as inducing no 
moral obligation to the observance. His words are, " In 
regard to those laws that enjoin only positive duties, and 
forbid only such things which are not mala in se, but 7nala 
prohibiia merely, annexing a penalty for the non-compli- 
ance, here, I apprehend, conscience is no further concerned, 



1 



APPENDIX. 243 

than by directing a submission to the penahy, in case of a 
breach of those laws." With all the deference due to the 
author of the Commentaries, as a luminous, and, with few 
exceptions indeed, a correct law writer, I am persuaded 
that the doctrine here advanced is erroneous, and danger- 
ous to be admitted into society. On a little examination it 
Avill clearly appear, that every law, necessary for the good 
of the state, — and such are the laws of Avhich the author 
was speaking, — is morally binding upon every member of 
the community. The error seems to have arisen, at least 
in part, from an opinion adopted by many, and which, 
though not admitted by the author himself, seems to have 
influenced his reasonings, that a state of individual inde- 
pendence is the only true state of nature to man — that 
every advance, every social improvement, is a departure 
from his nature — and that, in an advanced state of society, 
in civil government, it often becomes necessary, and even 
right and proper, to make many laws for the good of the 
state, which, though not contrary to the great original law 
of nature, have not the sanction of that law ; and, though 
pohtically binding, are not morally so, their observance or 
violation does not affect the conscience. A little considera- 
tion will evince the unsoimdness of this opinion, and all the 
consequences supposed to be derived from it. 

There is by nature unplanted in man a capacity for im- 
provement. He is a social being, formed by nature for 
society. A state of nature may be a state of weakness and 
ignorance ; but a state of knowledge and improvement is 
not therefore, with man, opposed to a state of nature. As 
well might we make the assertion of the infant and the 



244 APPENDIX. 

adult. An endeavor after knowledge, and the improvement 
of his powers, social and individual, is indicated to man, 
nay, is imposed upon him as a duty by the very laws of 
his nature. That rude independence, so often imagined, 
is a state forced and umiatural. It cannot exist without a 
violation or a dereliction of almost all the laws constituted 
by God in the formation of man. The isolated individual 
is deprived of almost all the laws of his nature ; scarcely 
have any of his powers, his mental faculties, passions or 
appetites, either excitement or object. He may be freed 
from some of the evils and vices found in society, but he is 
also excluded from aU its endearing charities, aU its enjoy^ 
ments ; in a word, he is hardly entitled to the rank of man. 
He is in possession of himself, and entitled fully to his rank 
in society only. It is a state to which aU his powers and 
faculties are adapted, to which the laws of his nature bind 
him, and which gives him the full privilege of those laws. 
Civil government is the necessary and natural consequence 
of a state of society, as we shall have occasion to explain 
more fully hereafter, and is legitimately founded in the 
principles arising out of the social nature of man, or, in 
other words, in the laws of nature. AU the members of the 
society have in it a common interest. This consists in the 
means of secm-ing to all, and adjusting their social and in- 
dividual rights. To effect this end, laws to regulate the 
conduct of the members, and direct it to the great object of 
the society, the common good, are indispensably necessary. 
A power must therefore be somewhere lodged, to make and 
enforce the observance of such laws. The mode of consti- 
tuting this power must always be left to the wisdom of 



APPENDIX. 245 

man, and will vary more or less, according to the wisdom, 
integrity, and means employed to effect the end ; but the 
constitution of such a power is founded in the laws of social 
nature. Surely, then, every law made in the spirit of such 
constitution, whether it relate to the security of individuals, 
to the security and improvement of social intercourse, inter- 
nal or external, or to the support and maintenance of the 
state, is ultimately derived from the laws of nature, and 
carries with it the force of moral obligation. It is true, 
that when a certain end is to be effected by a law to be 
made, several objects may offer, and it may be a matter of 
indifference, or rather of deliberation, on which the choice 
shall fall ; but Avhen the choice is made and the law enacted, 
that indifference is not transferred to the law to weaken 
the obhgation to obedience. 

As to there being matters indifferent, which it is, neverthe- 
less, " necessary to sustain by law," it appears to be little if 
anything short of a plain contradiction. It is true that, in 
certain stages of society, some acts may not be injurious, 
but may be even beneficial to the community, and very 
justly permitted to indi\nduals, which, in a progressive 
change of circumstances, become highly injurious ; so that 
a law to restrain these acts will have become right and fit, 
or, to express it in the manner of our author, absolutely 
necessary to the good of the whole. Surely, if the requisi- 
tions of the law be right and fit, it is right and fit that it 
should be obeyed. The duty of obedience is not a vague, 
political, but a strict, moral obligation. 

The cases in which the author of the Commentaries, as 
well as others, have advocated this laxity of principle, are 
31 



246 APPENDIX. 

generally of laws regulating commercial intercourse, or for 
raising a revenue to the state. The learned annotator, Mr. 
Christian, whose opinion I am happy to find coinciding Avith 
that which I had long entertained, has illustrated this pomt 
in a brief but masterly manner. I shall conclude this part 
of the subject with a passage from his notes. After having 
taken notice of certain laws made to prevent the destruc- 
tive effects of fire in London, and the quarantine laws, made 
to guard against the importation of infectious diseases, he 
proceeds : 

" He who, by a breach of these positive laws, introduces 
conflagration and pestilence, is surely guilty of a much 
greater crime than he who deprives another of his purse or 
his horse." " The laws against smuggling are entirely ^wm 
positivi; but the criminality can only be measured by the 
consequences ; and he who seizes a sum of money by evad- 
ing the public tax, does exactly the same injury to society as 
he who steals so much money from the treasury ; and is 
therefore guilty of as great irmnorahty, or as great an act of 
dishonesty. Or smugghng has been compared to that species 
of fraud, which a man would practise who should join with 
his friends in ordering a dinner at a tavern, and after the 
festivity and gratifications of the day, should steal away, and 
leave his companions to pay his share of the reckoning. 
Usury and simony are entirely of a positive nature, yet few 
men would have a conscience quite at ease Avho had been 
guilty of either." 

Punishments or penalties are never intended as an equiv- 
alent or a composition for the commission of the offence ; but 
they are that degree of pain or inconvenience, wliich are sup- 



APPENDIX. 247 

posed to be sufficient to deter men from introducing that 
greater degree of inconvenience which would result to the 
community from the general permission of that act which the 
law prohilHts. It is no recompense to a man's country for the 
consequences of an illegal act that he should afterwards be 
whipped, or should stand in the pillory, or He in a jail. But 
in positive laws, as in morals, it is equally false that omnia 
peccaia paria sunt. If there are laws, such perhaps as 
the game laws, which, in the pubhc opinion, produce but 
little benefit, or no salutary effect to society, a conscientious 
man will feel perhaps no further regard for the observance 
of them, than from the consideration, that his example 
may encourage others to violate those laws which are more 
highly beneficial to the community. Indeed, the last sen- 
tence of the learned Judge upon this subject, (" that where 
disobedience to the law involves also any degree of pubhc 
mischief, it is also an offence against conscience,") is an 
answer to his own doctrine ; for the disobedience of any law 
in existence, must be presumed to involve in it either public 
mischief or private injury. It is related of Socrates that he 
made a promise with himself to observe the laws of his 
country ; but this is nothing more than every good man 
ought to promise and to perform ; and he ought to promise 
still fiuthcr, that he Avill exert all his powers to compel 
others to obey them. As the chief design of estabhshing 
government is the prevention of crimes, and the enforce- 
ment of the moral duties of man, obedience to that govern- 
ment becomes one of the highest moral obHgations ; and 
the principles of moral and positive laws being precisely 
the same, they become so blended that the discrimination 



248 APPENDIX. 

between them is frequently difficult or impracticable, or, as 
the author of the "Doctor and Student" has expressed it with 
beautiful simplicity, " In every law positive, well made, is 
somewhat of the law of reason and of the law of God ; 
and to discern the law of God and the law of reason from 
the law positive, is very hard." 

Having premised these observations on the origin and 
nature of laws in general, pointed out the foundation of all 
laws, and the sources whence their obligation is derived, I 
shall hereafter take a brief notice of the law of nations; 
explain the general nature of municipal laws ; and then 
proceed to a systematic investigation and explanation of the 
common law of England, which is to be the principal 
subject of the intended course. We shall dwell, however, 
more particularly on those parts of the common law which 
are in force in this country, and the rules, reasons and prin- 
ciples, by which our judicial decisions are governed in all 
cases where the constitution or positive laws have not been 
interposed to supersede or alter them. Other parts will 
meet with attention so far, and so far only, as shall befound 
necessary and proper for elucidation, and to show the con- 
nection of the system. 



No. III. 



OF 



NATIONAL LAW, AND MUNICIPAL LAW IN GENERAL. 



LECTURE II. 



LECTURE SECOND. 



It was on a former occasion observed, that in the sup- 
posed state of nature, which is made to consist in individual 
independence, the laws of nature are almost wholly ex- 
cluded. In such a solitary state, the laws of morality, 
which teach the duty towards our fellow-men, the social 
duties which result from such relations only, can have no 
place. Such a state is merely imaginary. A man may tear 
himself from society ; he may place himself in a total seclu- 
sion from all others ; but whenever and wherever he is 
placed with man, social relations arise, and social duties 
result from the laws of his nature, independent of his volition 
or choice. These duties, by forming connections and re- 
lations more or less intimate, he may vary, contract, or 
extend within certain limits, but he cannot abrogate law, or 
weaken its obligation. A state of society may indeed be 
supposed, and has actually existed, previous to regular po- 
litical institutions, or any adopted form of civil government. 
In such a state the natural law of morals can be the only 
law which is prescribed, and can be enforced only by the 
collective sense and natural authority of the wise and good, 



252 APPENDIX. 

and will frequently assume the shape of compact and agree- 
ment, rather than of civil laws, the organs of legislative and 
executive power being wanting. 

Mankind, dispersed over the earth, could not unite in one 
society. Local and other circumstances have occasioned a 
division into separate states and nations, independent of 
each other, without that intimate, united bond of common 
interest, in which the individuality of a state or nation con- 
sists. Between independent nations various cncumstances 
of necessity or convenience induce international communi- 
cations, an intercourse more or less frequent and intimate. 
Among independent nations, from the very nature of their 
situation, no common superior power to dictate and enforce 
the law can be admitted. In this respect, the great society 
of nations, as we may call them, resembles, in no incon- 
siderable degree, the state of society just described, as 
existing before the actual organization of civil government. 
The law of nature, which in this application of it is called 
the law of nations, is therefore the only law ; for although 
they may enter into the most solemn treaties and conven- 
tions for regulating intercourse, and adjusting mutual con- 
cerns and interests, yet is each nation bound to the observ- 
ance of treaties and conventions, by mutual law only. 
Each must depend on the faith of the other, and in case 
of violation must submit, or resort to the law of force. 
Such is the foundation of international laAv, which in the 
Institutes of Justinian is thus defined : " Quod naturalis 
ratio inter omnes homines constituit, id apiid omnes gentes 
perasque custoditur ; vocaturque jus gentium, quasi quo jure 
omnes gentes uiuntur" — "That law which natural reason 



APPENDIX. 253 

appoints for all mankind, is called the law of nations, be- 
cause all nations make use of it." We are not, however, 
to suppose this law always to have been dictated by pure 
reason, deliberately deciding what is right and fit, but by 
reason influenced, controlled, and directed by the prevailing 
manners, knowledge, interests, and pursuits of the age. In 
short, every claim to its observance has been made to depend 
rather on long established usage, than any original dictates 
of right reason. 

Accordingly, we find that international law has always 
partaken of the barbarity of the age, and has been improved 
and refined with the improvements and refinements Avhich 
have taken place in the knowledge and manners of nations — 
greatly retarded, however, by the force of custom. It will 
be sufficient at present to mention one instance in the laws 
of war. Among the barbarous nations of antiquity, and 
this comprehends every nation whose history is extant, the 
laws of war acknowledged no right but that of the strongest. 

These laws universally subjected in full right to the con- 
queror, the hfe, hberty, and property of the conquered. To 
grant to a captive enemy, or to the people of a conquered 
country, their lives, in exchange for perpetual servitude for 
themselves and posterity, or the payment of a perpetual 
tribute, was considered as a humane indulgence — a relax- 
ation of the strict right of the conqueror. Such continues 
to be the acknowledged law of nations throughout Africa, 
and no small portion of Asia. The same law is admitted, 
and carried into execution with augmented severity by the 
aboriginal nations and tribes on this continent. 

But among the nations of modern Europe, and their de- 
32 



254 APPENDIX. 

scendants in other parts of the globe, improvements in liberal 
science, and refinements in manners and morals, under the 
benign influence of the Christian religion, have banished 
this reproach from their code of international law. 

With these brief notices of the law of nations, I shall pass 
on to the municipal law ; some explanation of Avhich is a 
necessary preliminary to the study of the common law. 

Municipal and civil law, when used generally, are terms 
of the same import, meaning the rules or laws by which any 
particular slate or nation is governed, as the municipal law 
of England, of France, or any other nation. When the civil 
law is mentioned by way of eminence, it is applied exclu- 
sively to the code of Roman law — that which was once the 
municipal law of ancient Rome, or rather of the Roman 
empire. Municipal law under the name o(jus civile, or civil 
law, is thus defined by Justinian. " Quod quisque populus 
sibijiis constituit, id ipsius propriimi civitatis est, et vocatiir jus 
civile quasi proprium ipsus civitalis." That law which a 
people institutes for its own government, is called the civil 
law of that people. This comprehends, not only the posi- 
tive laws expressly enacted by the legislative power, but all 
customs which have obtained the force of general laws in the 
state. 

Judge Blackstone has given a more particular and more 
scientific definition of municipal law. He tells us that it is 
a rule of civil conduct prescribed by the supreme power in a 
state, commanding what is right, and prohibiting what is 
wrong. Let us now, with the author of the Commentaries, 
endeavor, as concisely as possible, without losing sight of 
perspicuity, to illustrate the several parts of the definition. 



APPENDIX. 255 

First, then, municipal law is a rule. It differs from a mere 
order given by a superior to an inferior, which is confined 
to the person or the occasion. It differs from an act grant- 
ing property, or a privilege, or exemption to an individual, 
or enacting a penalty upon a particular person. For although 
these assume the name and shape of laws, and though they 
may have permanency, yet they want that universality which 
is essential to a rule, in the sense of municipal law. Such 
are usually called private acts, and may, Avith the strictest 
propriety, be called grants, compacts, or sentences, accord- 
ing to the subject and the parties. Not that it is necessary 
that the rule or law should operate simultaneously or imme- 
diately upon all the members of the community. It is suffi- 
cient that it have a potential operation upon all, that its 
scope and tendency is to secure the rights of the citizens, to 
secure an impartial administration of justice, or in any legit- 
imate way to promote the general interests, although in its 
immediate requisitions, it shall extend only to a certain class 
or certain classes of men in the state. Thus an act requir- 
ing all persons, accepting any public office, to take an oath 
for the faithful performance of its duties, in its immediate re- 
quisitions, extends only to those persons who shall, from 
time to time, be appointed to such office ; yet it is with pro- 
priety deemed a general or universal laAv, not so much be- 
cause appointments are supposed to be open to all, so that 
all may become subject to its immediate operation, for in all 
governments there are qualifications for office, and exclu- 
sions, particularly that of one of the sexes generally, but be- 
cause to secure a faithful performance of the duties of public 
functionaries, the great object of the law, concerns the com- 
munity universally. 



256 APPE?IDIX. 

The law is distinguished from advice or counsel, for that 
it imposes an obligation, and compels even the unwilling. 
Whereas advice or counsel is received or rejected, at the op- 
tion of those to Avhom it is addressed. The distinction 
between a law which commands, and a compact or agree- 
ment which promises, it is sufficient barely to mention ; it 
can need no illustration. 

Municipal law, as being a rule of civil conduct, is distin- 
guished from the law of nations, which is a rule of moral 
conduct, and of which we have already treated. The natu- 
ral law of morals extends to every duty of man, as a social 
being, and as a being dependent on his Creator ; it extends 
as Avell to those of imperfect, as to those of perfect obliga- 
tion, as distinguished by ethical writers. While it enjoins 
the great duties of justice, essential to the existence of so- 
ciety, it also enjoins the duties of benevolence and charity, 
essential to its happiness — that each should do good to 
others according to their relative means, situation and op- 
portunities. 

The municipal law extends only to duties of perfect obli- 
gation. It regards men as members of the state only ; its 
great and principal object is to enforce the duties of justice, 
both public and private ; to compel each to render to others 
their just dues ; to abstain from all those acts which are 
injurious to individuals or to the community at large ; to 
punish crimes which affect the peace and safety of the citi- 
zens, or the safety and welfare of the state, and to compel a 
reparation of all injuries, Avhether public or private. Thus, 
although municipal law is founded in the law of nature, the 
great law of morals, and coincides with it to a certain ex- 



APPENDIX. 257 

tent, yet is it more limited in its end, regarding the happi- 
ness of men merely, and alone as connected with the civil 

state. 

Municipal laAv is also a rule prescribed. This implies 
that the law be prospective, not retrospective in its opera- 
tions, and that it is to be made known before it can justly be 
entitled to the attribute of a rule of civil conduct. For, to 
require that past conduct should be judged by its conformity 
or non-conformity to a law subsequently enacted, or that 
future conduct should be affected or judged of by a law 
enacted in secret, and of which no means of knowledge is 
furnished to the party to be affected thereby, is the supreme 
of tyranny, contrary to every solid principle of natural law, 
reason and justice. 

And lastly, in what we may call the first branch of the defi- 
nition, it is said that municipal law is not only a rule of civil 
conduct prescribed, but is a rule prescribed by the supreme 
power in the state. That the power to make laws which 
shall bind the community through all its members in the 
duty of obedience, must be paramount or supreme in the 
state, is too obvious to need illustration. For how can that 
be deemed a law, or rule of civil conduct, which may at 
any time be suspended, or its obligation dissolved, by any 
citizen at his option. In such case it assumes not the char- 
acter of a law but of counsel or exhortation, which those to 
whom it is addressed may accept or reject at pleasure. It 
is true that by the constitution of a state, a temporary power 
to suspend the operation of a law may be vested in an 
organ, distinct from that of ordinary legislation ; but this is 
only a participation of the supreme power, to the sove- 



258 APPENDIX. 

reignty of which appertains the power of suspending and 
repeaUng, as well as of enacting laAvs. 

In this power of legislation, the power of suspending or 
repealing laws, consists the sovereignty of a state, whether 
this power be vested in a mere simple or more complex 
organ ; whether it be in the whole body of the citizens, as in 
a piu*e democracy, in a select body as in an aristocracy, in a 
single person, as in absolute monarchies, or in a union of all 
these forms, as in the parliament of Great Britain, consisting 
of the king, the monarch, the house of lords, the aristocracy 
of the country, and a house of commons, the representa- 
tives of the people, or democratic part of the nation. 

It may not be foreign to this branch of our subject to 
make some farther inquiry into the origin and nature of civil 
government — the foundation of this sovereign power — and 
the right with which it is vested of enacting and enforcing 
laws. 

I cannot readily assent to the proposition, however sup- 
ported by great authorities — that the only true and natural 
foundation of civil society is the wants and fears of indi- 
viduals — I think, as has been already briefly remarked, the 
foundation is more deeply laid in the laAvs of social nature ; 
in the adaptation of man to the social and civil slate by that 
nature, which is the constitution ordained by creative wis- 
dom and goodness. His wants and his fears as an individ- 
ual, arising from his weakness, which is inseparable from his 
nature in his state of existence, can be considered only as an 
inducement, a powerful inducement if you please, to avail 
himself of the laws of his nature, and by building on that 
foundation, to seek security against his fears, and relief to 
his wants, in local and civil institutions. 



APPENDIX. 259 

It has, I think, been already evinced that man is not only 
adapted by original constitution, but is, if I may use the ex- 
pression, bound by the laws of his natiu-e to the social state. 
A few observations may suffice to show his adaptation to the 
civil state. 

If we inquire what it is which ultimately renders man a 
fit subject of moral government, Ave shall find it in his con- 
sciousness of moral obligation ; or what we may, with a 
good degree of propriety, call his sense of accountabihty. 
The sense of accountability is the result of moral perception. 
When a man perceives in the result of certain existing 
moral relations, a duty enjoined, he is, m the performance of 
the duty, conscious of a sentiment of self-approbation accom- 
panied with pleasure ; in the neglect or violation, a sentiment 
of disapprobation, accompanied with pain to the mind, with 
displeasure. In viewing the moral actions of others, he finds 
arising in his mind towards the agents, similar sentiments of 
approbation or disapprobation, as the action may have been 
considered as morally right, or morally wrong. He finds 
this common to man, and conceives it to be a common prin- 
ciple in the law of moral beings. He perceives that the 
approbation or disapprobation of his own actions by others, 
as they have been a performance or violation of his moral 
duties, or in other words, as they have been right or wrong, 
to be just and due. 

It ought to be added, that it is a principle implanted in 
the breast of every human being, that he should desire the 
approbation of others, and that he should derive a rational 
pleasure from the merited gratification of this desire. He 
has a consequent dread of their disapprobation, and suffers 
pain, is rendered unhappy by merited censure. 



260 APPENDIX. 

When man raises his views to the Supreme Being, his 
Creator, on Avhom he is dependent, he conceives an appro- 
bation, or, perhaps, to speak with more propriety, a com- 
placency in the Divine mind, in the observance of the just 
laws which he has estabhshed, and a disapprobation in their 
violation by the creature. This view of the subject, with 
the conception of the Divine displeasure at the offence, 
brings home to the mind not only a sense of punishment 
experienced in the apprehension of the displeasure, but the 
full right and justice of punishment. By this branch of 
accountabihly to his Maker, and moral lawgiver, is man 
finally fitted, and his subjection to moral government com- 
pleted. 

From that sense common to mankind, that perception 
which every man has, that agreeably to the laws of his social 
nature, his actions, according to their merit or demerit, are 
of right subjected to the approbation or censure of his fellow- 
men, arises a second branch of accountability. The mutual 
accountability of each to all — different from the other in 
degree, extent and immediate object, but equally founded 
in the laws of nature, as ordained by the great first cause. 
Having taken this view of man and the laws of his nature, 
if it be sufficiently correct, it is obvious to conclude, that as 
his sense of accountability to his Creator renders man a fit 
subject of moral government, on the same principle his 
sense of accountability to his fellow-men renders him a fit 
subject of human, that is, civil government. If we have 
been at all .successful in our inquiries, it is very evident that 
the foundation of civil government is laid on the broad basis 
of the laws of nature ; it is founded in those principles 



1 



APPENDIX. 261 

which arise out of the nature of man, as a social and moral 
being. That man is under a necessity to adopt civil govern- 
ment is readily admitted ; not a necessity arising from fears 
and wants of individuals, or even from the perversity of hu- 
man nature, but a necessity arising from his nature as a 
limited as well as social being. Let me endeavor to show 
in Avhat this necessity consists ; and in doing this I shall not 
hesitate to repeat some of my former thoughts, when kicu- 
brating upon the same subject. 

Men have a relish for society. It is the scene of their im- 
provements, and the great source of their happiness ; still 
no degree of individual strength, no possible goodness of 
heart, can enable them to enjoy its benefits without a pro- 
vision of civil institutions and law. 

Perception, consciousness, and voHtion, or those powers 
which originate external actions in men, belong to them 
individually. A society consisting of any number of indi- 
viduals, can have no common united perception, conscious- 
ness, or volition. Could this be the case a society might 
well, and with the simple act of volition, direct and control 
the actions of all and of every one of its members with the 
same ease and regularity with which an individual directs 
and controls the motion of his own body and its members ; 
but this is denied to man in the aggregate, and in every 
combination of society. The will of the society is made up 
of the individual wills of its members. 

Had man been formed with faculties which might have 
enabled him, with an intuitive glance to penetrate and com- 
prehend as they arise the individual wills of all the members 
of the society, and of ail whose conduct migiit any way 
33 



262 APFEINDIX. 

affect it ; to penetrate and comprehend the passions, appe- 
tites and pursuits of every uidividual ; in a word, to discern 
and comprehend all the causes by which God governs the 
actions of moral agents ; — were he endued with reason suffi- 
cient to arrange the whole, so as to prevent any individual 
mterference — goodness of heart and purity of mind to ena- 
ble him to pursue the arrangement in such a state, both of 
knowledge and disposition, — he would stand m no need of 
civil laws, or rules prescribed by common consent, for the 
regidation of social conduct. But such a state falls not to 
the lot of any finite being. 

Oiu: positive knowledge is only partial of the present 
and past, depending on actual and successive observation. 
There is, however, given us some clue to the future. We 
are able to perceive certain relations ; and as far as expe- 
rience leads, we find a uniformity in the course of natm'c. 
We discover some of the causes and some of the laws by 
which physical effects are produced m a regular series ; of 
others we are wholly ignorant, or have at best but an im- 
perfect glimpse. Much more limited is our knowledge of 
the causes which produce and vary human actions, subject 
to the mfluence of motives, to the choice of the agent, and 
to those laws by Avhich i^they are governed in succession. 
In an extensive society, individuals can have but a limited 
knowledge even of the present actions of the whole. Their 
knowledge of the intentions and causes on which future ac- 
tions depend, is much more limited. We are able to gain 
some knowledge of the leading principles of actions, of the 
motives which generally prevail, and the species of action 
they will produce in certain situations. But to descend to 



APPENDIX. 263 

every situation, to every character, and thence to learn fully 
the particular influence of motives and the individual ac- 
tions, which will follow in each, is beyond the reach of hu- 
man sagacity. In a society composed of any considerable 
number of individuals, and in a state of any considerable 
activity, there will be many and very different situations. 
The influence of motives upon individuals will be very 
different. They will have a variety of distinct interests and 
pursuits ; and those not at all, or very imperfectly known to 
each other in their origin. However innocent and right 
those interests and piu-suits may be, when considered sepa- 
rately, they will, by frequent, though unintentional mter- 
ferences and oppositions, form a scene too intricate for the 
powers of the hiunan mind to evolve. Could we suppose 
every person in the society actuated by principles of the 
most disinterested benevolence, and by the most accommo- 
dating spirit, the whole time must be consumed in attempts 
to compromise — none could be left for action. 

Without a social perception, consciousness and vohtion, 
with any goodness, and with any wisdom short of infinite, 
the state of society would, at best, be a scene of inextricable 
confusion. To remedy such evil, natiure has pointed out to 
man the necessity of civil establishments, and the promulga- 
tion of laws. Here man finds a provision analogous to his 
nature. By the establishment of laws, which the individu- 
als of the community have submitted to observe as the rule 
of their future conduct, they are enabled, with a suflicient 
degree of certainty, to foresee the future pursuits and inter- 
ests of each ; following the line prescribed, they can avoid 
any considerable interference, or, by applying the rule. 



264 APPENDIX. 

remedy the inconvenience. In no other way is it possible to 
connect a community either in sentiment or interests, to 
unite the pubhc force, to direct it to the attainment of any 
common good, or to the avoiding or repelling any common 
evil ; in no other way is it possible to give any security to 
public or private rights. 

Still men are imperfect ; they will be guilty of deviations, 
transgressions of the law, and infringements of each other's 
rights. This will happen sometimes through ignorance of 
the law, or of the right ; an ignorance which arises from 
weakness in judging, or inattention in examining. Some- 
times it will happen through the prevalence of interest, or 
the violence of passion ; therefore, to give laws a compul- 
sory force, and to secure a general observance, they must be 
so calculated that every member shall find a convenience in 
the observance, but more especially a certam inconvenience 
in the neglect or violation. Hence arises the necessity of 
penalties. These penalties are, from the weakness of men 
in discerning tendencies, and their consequent liability to 
vice, necessarily enhanced. Hence, also, arises the neces- 
sity of subordination, and of civil rulers to give activity and 
efficiency to the laAvs. In a state of greater perfection than 
is to be found in the present state of society, a greater per- 
fection in knowledge and virtue, penalties may make a less 
formidable appearance ; but in every state the necessity of 
penalties wiU equally exist. 

In a society composed of a few individuals, in a simple 
state of manners and of property, the motives to action are 
few ; consequently there is little activity of individuals, and 
little interference of interests. A fcAv simple rules, mostly 



APPENDIX. 265 

adopted and supported by custom, and frequent consulta- 
tions upon present emergencies, supply the place of a more 
regular polity. They are the first rude essays in civil insti- 
tutions. Still, in every state of morals and manners, a ne- 
cessity of known and estabhshed rules or laws, equally exists. 
On the whole, we may safely conclude, that no order of 
beings short of infinite perfection, in wisdom as well as in 
goodness, can subsist in society without an establishment of 
civil government and law. 



J 



No. IV. 



ON 



THE SYSTEM OF LAW, AND THE PROPER METHOD 

OF STUDY. 



LECTURE III. 



LECTURE THIRD. 



My principal view, in this lecture, will be merely to make 
some strictures on the common law of England, its rise, 
progress, and formation into a science, and to add some 
observations on its study. 

Man is everywhere the creature of habit. By repeated 
exercise of his corporeal powers and organs in any particu- 
lar way, he not only acquires a facility and dexterity in the 
performance, but a fondness for the exercise ; it becomes a 
habit. It is the same with the mental powers, whether taken 
individually or socially ; to whatever course of action man 
may have repeatedly applied himself, a habit is superinduced. 
Such is the common nature of all persons. Social action is 
originated and directed by mental exercise. By repetition 
in such case, a mental habit is acquired. It is a habit of 
the moral and social kind, intimately connected with a notion 
of right and justice. Where the operation is on the mmds 
of all, or the major part of the society, the habit becomes 
general, and thus a custom is introduced, by which is deter- 
mined what is right and fit, what ought to be done in every 
case falling within the custom. In a Avord, it obtains a 
34 



270 • APPENDIX. 

binding force, and becomes the law of the society. Such 
appears to be the origin of national customs, or common 
laio. Connecting, with the moral feelings, these customs 
acquire to a degree the force of moral obligation, and are 
enforced by the same sanctions ; the observation is felt to 
be right, the non-observance or violation, Avrong. The 
observance, therefore, meets the general approbation, the 
violation, the general censure. Combining with the general 
interest, it is perceived to be the right of the community 
to require a general observance. In the progress of society 
new pursuits and new interests arise, and the state becomes 
more complex ; the early customs, fcAV and simple, become 
insufficient. The society, therefore, by themselves, or by 
some authority delegated or assumed, agree upon new rules, 
to be applied to those cases in which the customs already 
estabhshed are found to be deficient, and thus positive laws 
or statutes are introduced. These new laws being fire- 
quently altered, modified, repealed and revised, never 
obtain, as such, that habitually binding force which attaches 
to the ancient customs. Some of these positive laws, made 
in the early stages of society, may, however, be lost, while 
the rules Avhich they have introduced in practice, continue 
to be acted upon. Such rules will now be considered as 
customs, and binding as such ; and such, in its origin, was 
the Common Law of England. It has indeed, in its 
progress, received great additions from various sources^ 
until it has grown up into that vast fabric, that comprehen- 
sive system which we now find it. Most writers on the 
subject have held, that the customs of which the common 
law of England is composed, originated with the Saxons 



i. 



APPENDIX. 271 

who conquered that island ; and this from a belief that the 
ancient inhabitants, in that event, were wholly exterminated 
within the hmits of the conquest. But it seems probable 
that the great multitude, of villeins or people reduced to 
slavery among them, — and such were with them almost all 
the cultivators of the earth, — Avere a remnant of the con- 
quered Britons, the ancient inhabitants. It is reasonable to 
suppose that these were of the lower class of the Britons ; 
those of the higher class, and the most warlike, having per- 
ished in the Avar, or fled into the almost inaccessible moun- 
tains of Wales. From those who remained, it is highly 
probable that the Saxons received and adopted with their 
OAvn some of the British laws and customs. Some of these 
were, we may suppose, of Roman origin, as Britain had for 
centuries been a Roman province, and all the laws had 
been administered by Roman governors and judges. But 
from the degraded state of the Britons Avho remained after 
the Saxon conquest, their laAvs and customs might not have 
obtained to a very considerable extent. I think, however, 
this will accoimt for the similarity found in some of the ear- 
liest Saxon laAvs to the Roman or Civil law. The body of 
the customs, however, were of Saxon origin. Upon the 
Saxon conquest, England had been divided into seven inde- 
pendent kingdoms, called the Heptarchy, in Avliich customs 
somewhat ditferent obtained. The Danes, Avho conquered 
and made permanent settlements in some parts of England, 
and even at one time obtained the sovereignty of the whole, 
introduced some of their customs. After the union of the 
Heptarchy under one sovereign, Alfred the Great, a ):)rincc 
the most learned of that age, collected all Ihe customs and 



272 APPENDIX. 

laws of general application, into one code, and ordered 
that it should be observed throughout the kingdom, Alfred 
also made a civil division of the kingdom into counties, 
hundreds, and tithings, and established county and some 
other courts. These divisions and courts, though with some 
alterations, still continue. A revision of Alfred's code was 
commenced by Edgar, and afterwards completed by his 
grandson, Edward the Confessor, and probably with some 
additions. 

A very great alteration was made in the common law by 
the introduction of the feudal system into England, by 
William the Conqueror. This system was for some time 
refined upon, and carried to a great extent by the courts now 
filled with Norman judges, and who were frequently guided 
by the laws and customs of their own country. The books 
of the civil law, which had long been supposed to be lost, 
having been discovered, w^ere studied with indefatigable zeal 
by the clergy, Avho almost monopolized what little there was 
of learning in that age ; the advocates in England were 
mostly of this class, as Avere also many of the judges. And 
although the civil or Roman laAv was never publicly allowed 
to have any force in England, and was not cited as au- 
thority, yet the decisions of the courts were in many in- 
stances influenced by its rules. Accordmgly, we find that 
Glanville, chief justiciary of England, and a noted law 
writer in the reign of Edward I., as well as some other 
writers who followed him, have, although without reference, 
copied into their works many passages of the civil law, which 
were taken as part of the common laAv of England. Indeed, 
as commerce and personal property increased, and personal 



APPENDIX. 273 

contracts, which in those times had in consideration of law, 
occupied the back-ground, became important, the books of 
the civil law furnished the best, nay, the only practical rules 
to which resort could be had. In such cases we shall even 
find that down to later times — from the same source, but 
without acknowledging the authority of the civil law, were 
drawn many rules and maxims for governing decisions in 
cases of personal contracts, deposits and trusts. Very few 
statutes of the first Norman kings are now to be found. It 
is very certain, however, that the statutes passed in those 
early times, introduced a course of decisions, Avhich after the 
statutes were lost and forgotten, came to be considered as a 
part of the common law. We further find all the early 
statutes Avere very short, and indeed mere capitularies, es- 
tablishing some material point, and leaving all the rest to 
the interpretation of the judge. These interpretations and 
the rules and maxims adopted by the court, to elicit the 
meaning and to give effect to these summary acts, may be 
considered as a great addition to the common law. To in- 
stance — in the statute of "Westminster 2d, commonly called 
the statute De-donis. This statute enacts, that henceforth in 
all donations, the will of the donor shall be observed. From 
this short sentence, by construction, has been deduced all 
the various species of estates tail, and aU the doctrines con- 
cerning them which occupy so large a space in the English 
law of real property. Great additions to the common law 
have continued to be made down to the present time. The 
law merchant, a very important branch of the law, has been 
very greatly extended and improved. It has been, and by 
some still is, considered to be a particular custom, but it 



274 APPENDIX. 

certainly now is, whatever it might have once been consid- 
ered, a legitimate branch of the common law. It compre- 
hends a very extensive and important branch of contracts. 
Nor is it at all material whether any of the parties to such 
contracts, be merchants or not. If neither of the parties be 
a merchant, it is, by all, alloAved to be sufficient to say, it is 
a mercantile transaction, and therefore to be decided on the 
principles of the law merchant, whatever may be the char- 
acter of the parties. But for a custom to extend to all 
through the kingdom, without limitation of person or place, 
answers the fullest definition of the common law. The 
common law, in connexion with the statute law, forms a 
system, the knowledge of which is called the science of law. 
To those who are engaged in this study, it may be useful 
to inquire, how this system has been formed. It may serve 
to facilitate their progress. It has not been formed into the 
system, into which it is grown, from any previous or cotem- 
porary design directly intending to produce such system. 
Those who, in the progress, have furnished the most valuable 
materials, and have contributed most to its perfection, appear 
to have had no such particular aim ; and even, for the most 
part, not to have thought it capable of being reduced to a 
system. It has been prepared and adopted through the in- 
fluence of that tendency to analogy which is so natural to 
the mind of man, by means of which everything in his pur- 
suits turns towards, and finally takes a systematic form. 
From this, every child in learning to speak, not from being 
taught, but from a natural propensity, pursues and is guided 
by analogy. When he has once learned to express his 
meaning of things, in the little circle of his knowledge, he 



APPENDIX. 275 

will, in the use of words that are anomalous, constantly, until 
otherwise taught, form them accordmg to the analogy of the 
language, although he shall never have heard of analogy, nor 
be even capable of understanding its meaning. From this 
general propensity to analogy m everything, in a course of 
action, whether pursued by one man only, or by several in 
connection or succession, there is a constant tendency to 
system, whether directly intended or not. In this way have 
been prepared almost all the great systems to be found in 
the arts and sciences, within the whole compass of human 
knowledge. The materials had been prepared, the several 
parts had been formed, and had received their adaptation 
long before the systematic proportions were suspected. In 
such a state, what is called forming a system, is nothing 
more than a discovery of its existence, and an orderly and 
well-arranged description and delineation of its several parts 
and relative proportions. We now apply the name of sys- 
tem to the systematic description — to an orderly and scien- 
tific disposition of the names of the several parts. We also, 
by an allowable figure, give the name of system to a treatise 
on such a subject. Far be it from me to depreciate the merit 
of such discovery and arrangement, often, very often, of 
incalculable benefit to the scientific world. It frequently 
requires a perspicuity, a force and comprehension of intel- 
lect, which falls to the happy lot of a few of the human 
race. 

It has fared with the laws of England as with other sys- 
tems which have grown up in a long course of gradual im- 
provement. For centuries, it was hardly, if at all, thought 
capable of being treated systematically. The best method. 



276 



APPENDIX. 



it was thought, was to treat of the several parts or heads, 
according to an alphabetic arrangement of their several 
titles. This arrangement, be sure, has the convenience of 
a dictionary ; but, for any scientific purpose, the disposition 
might have as well been made fortuitously. 

Such was the arrangement adopted by Viner, by Bacon, 
Comyns, and many others. Some heads of the law had 
been treated under a more scientific form, but with very 
little illustration from deduction, or connected reasoning. 
Such treatises consisted mostly in a collection of rules, 
maxims, and decided cases, considered as applicable under 
the several heads. The lawyer and the student were left 
to make their own deductions and conclusions, and to apply 
them each by the force of his own reasoning. In this situa- 
tion the study of the laAv was laborious indeed. The 
" Viginti annorum lucubratmies" was sufficiently short for 
attaining any competent degree of knowledge. That emi- 
nent lawyer and judge. Sir Matthew Hale, who flourished 
in the reign of Charles IL, was the first, so far as I have 
been able to learn, who conceived the opinion that the law 
of England was capable of being reduced to a system, and 
of being treated scientifically. With this view, in his his- 
tory of the common law, an unfinished work, not published 
until after his death, he had exhibited a complete scientific 
analysis of the law. This conception Judge Blackstone 
afterwards realized in his Commentaries. He has taken 
from the great divisions of that analysis the titles of his four 
books, and from the subordinate divisions, the titles of the 
subordinate divisions contained in liis great work. Since the 
publication of the Commentaries, there have appeared a 



APPENDIX. 277 

great number of treatises upon distinct heads of the law, 
many of them handled in the same masterly and scientific 
manner. Such are Chitty on Pleadings and on Bills ; Jones 
on Baihnents ; Powell on Contracts, on Devises and on 
Mortgages ; and many more too nimierous to mention. All 
these have, m a very high degree, facihtated the progress of 
the student, and aided the researches of the lawyer. It may 
not be amiss again to refer to the propensity to analogy, 
already mentioned — to attend briefly to its necessity and 
use in the acquisition of all general knowledge ; and the 
necessity of a particular attention to it in the study of the 
law. United with the power of abstraction and association, 
it lays the foundation of all general knowledge and science, 
and without Avhich we could never attain anything beyond 
the mere knowledge of individuals, without the possibility 
of draAvmg one general conclusion. Oiu* first acquaintance 
is with individuals ; among a number of individuals, as where 
man is the subject, is observed a great degree of similarity 
in their make, powers, faculties and dispositions. They 
differ indeed as mdividuals, but abstractmg from that difler- 
ence by which individuals are distinguished, it is perceived 
that what is predicable of any one, is predicable of each and 
of all. From a view of the intunate analogy and associa- 
tion of all in which the individuals agree, the mind is im- 
pressed with the notion of a common nature — an abstract 
whole ; or, if I may use the expression, an abstract indi- 
viduahty, in the united conception of the individuals, and 
is able to draw general conclusions, and lay down general 
principles, without bringing any particular individuals, or 
succession of individuals into view. Othqr individuals are 
35 



278 APPENDIX. 

observed differing from the first in many essential qualities, 
but having a great degree of similarity, an equal analogy 
among themselves. Take the instance of sheep m the brute 
creation ; these will by the same process be associated in 
the mind into a distinct group, and so of other individuals 
almost without end. These groups, in regard to a still 
higher classification, ai*e denominated species. To enable 
us to converse and reason with clearness in anything con- 
cerning these species, we give to each a distinct and appro- 
priate name. This name, from habitual use, becomes in 
conversation, and even in the mmd, the representative of its 
particular species, and has, by some sects of metaphysicians, 
been held to be the very essence of its species. It is fur- 
ther perceived, that there subsists a general analogy between 
several of these species, notwithstanding the difference of the 
individuals of which they are severally composed. As be- 
tween those aheady mentioned, the circumstance of their 
havmg animal hfe in common. From this general analogy 
the mind refers them to and associates them into a further 
class, which, in respect to the species, is caUed a genus or 
kind. Thus all the species will be grouped into general 
kinds, according to the respective analogies apprehended by 
the mind. The same process is carried on, the number 
contained m each decreasing as we ascend, until, as far as 
the human mind can extend, it embraces the whole miiversc. 
This may be called the system of the universe. 

A similar process is carried on with similar results — a 
systematic classification upon all subjects with which the 
mind is conversant, whether it be physical or moral, mate- 
rial or intellectual, or of a mixed or complex nature. We 



APPENDIX. 279 

are not, however, to suppose that the mind is always con- 
scious of exertion m forming these associations. In the 
early stages and common occurrences of life it appears to 
be an ini^i^ression on the mind, rather than the effect of 
any immediate exertion. Sometimes, indeed, when, from 
any circumstance, it is doubtful to what class a subject ought 
to be referred, the discriminating powers of the mind are 
exerted, as also in attempting an accurate arrangement for . 
scientific purposes. Upon the whole, it very nearly resem- 
bles what is usually denominated instinct. It must be con- 
sidered as it regards man, as one of those adaptations of 
the being to its situation and end, so conspicuous in all the 
works of the Creator. It is one of those things, without 
which man could take no one step in moral or physical rea- 
soning, or direct his actions to the attaiiunent of any end 
whatever. The science of law is a civil and moral sci- 
ence ; the science of the modes and rules for administering 
justice in a society of moral beings. 

Whoever examines the English law, as a science, will 
find it formed into a system in the same maimer as has 
been the case with other systems. The lowest and most 
minute divisions answering to individuals ; those grouped 
into heads answering to species, and these again into larger 
divisions, answering to genera ; and so on, ascending until 
it embraces the whole, closely and firmly imited, and distin- 
guished by their respective analogies. In the study of this 
science, as in all others, it is necessary, first, to take a gen- 
eral view of the system ; to obtain a knowledge of its divi- 
sions and tlieir distributions, the leading rules and axioms ; 
in a word, to obtain a good knowledge of its elements. All 



280 APPENDIX. 

this the attentive student will find in the volumes of Black- 
stone, which, as an elementary treatise, has not been sur- 
passed in any science. The next step proper to be taken 
by the students is, to proceed analytically ; to Ibegin with 
one branch, and the minor divisions of that branch, to 
make himself fully master of it ; then, and not till then, to 
proceed to another branch, until he shall have encompassed 
within his knowledge the whole system complete. In his 
course of reading, it is indispensable for him, if he wishes 
to make proficiency, to turn to all Ihc cases and authorities, 
and to examine them for himself ; not merely to fuid the 
conclusion and point of the authority, but, if possible, to 
make himself master of the arguments and reasons of the 
author or judge, Avhich were relied upon as leading to that 
conclusion. 

Here it is necessary to observe, that the reasoning in the 
application of precedents is wholly analogical. The whole 
force of the authority depends on the strength of the anal- 
ogy. It is therefore necessary that the student should en- 
deavor, as he proceeds, as much as possible to acquire a 
clear and distinct perception of the analogy, in all and every 
part of the law ; that he may be able, at a glance, to 
measure, if I may use the expression, the distance or prox- 
imity and du'ection, and to estimate its force. Lord 
Mansfield observes, in effect, in the case of Jones v. 
Randal, that the great use of precedents is to illustrate 
principles, and to give them a fixed certainty ; without 
analogy, they can afford no possible illustration. To any 
one who has no perception of the analogy, precedents can 
exhibit nothing but an incoherent, indigested and heteroge- 



APPENDIX. 281 

neons mass of individual cases, leading to no conclusion, 
and affording no grounds of decision. A lawyer who, as 
sometimes happens, has been iiiattentive to analogy, misled 
by mere similarity in a word or expression, will not unfre- 
quently produce, as an authority, a case entirely foreign, or 
which may even conclude against his argument. Every 
student should therefore labor to acquire a ready and clear 
discernment upon this subject. 

I shall conclude with one observation more. Let the 
student not content himself with merely learnmg to recollect 
or repeat the arguments and reasons which he has met with 
in reading, as the arguments and reasons of others ; but let 
him endeavor so to penetrate, understand and appropriate 
them, that they may appear to his mmd to be exclusively his 
own. The former is mere memory ; the latter only is 
knowledge. 



1 



No. V. 



ON THE RIGHT OF PROPERTY. 



LECTURE IV. 



m 



LECTURE FOURTH. 



Our present inquiry will be, whether the right of pro- 
perty, so much the object of all laws, that right which a man 
claims to the exclusive possession and enjoyment of any sub- 
ject, be derived from the laws of nature, or whether it origi- 
nate in the positive laws of society. 

Judge Blackstone, in the beginning of the second book 
of his Commentaries, has tteated of the subject of property, 
but his attention was wholly taken up with the mode of ac- 
quisition, the legitimate mode in which private property 
might have been first separated from the common mass. 
He takes for granted that the right of property is not a natu- 
ral, but a civil right ; that it has its origin in the positive laws 
of society. His learned annotator, Mr. Christian, is dissatis- 
fied with this opinion. He asserts, that there is a law of 
property, which nature herself has written upon the hearts 
of mankind : that the notion of property is universal, and is 
suggested to the mind of man by reason and nature, prior to 
all civil institutions. He has shown the theory of Locke, 
who derives the right of property from the personal labor of 
the individual, bestowed upon the thing, in separating it 

36 



286 



APPENDIX. 



from the common mass and preparing it for use ; and of 
Grotius and Puffendorf, Avho make the right of property de- 
pend on a tacit agreement for the separate use and enjoy- 
ment, to be wholly unsatisfactory. It is to be regretted, 
that he has not given some further explanation, of which he 
was so capable, and shown how and why it is to be referred 
to the law of nature. As he has very justly observed, it is 
of great importance that moral obligation and the rudiments 
of law should be referred to true and intelhgent principles. 
What the learned annotator has omitted, probably from the 
circumscribed limits of an annotator, I shall endeavor to 
supply. 

In the physical world we discover, in certain relations and 
combinations of matter, or physical bodies, certain conse- 
quent results or effects. Having learned by repeated expe- 
rience of ourselves and others, from common experience, 
that the same effects are constantly and regularly exhibited 
by the same matter or physical bodies, placed in the same 
relation and combinations, we say it is natural that the 
effects are, in such case, produced according to a laAv of 
nature. In many instances, as in mechanics, that such will 
be the effect produced by a certain combination of matter, 
is a subject of mathematical demonstration. But we see, 
and can only see, and describe the matter, its relations, 
combinations, modes of operation, and the effects produced, 
and here we must stop. Why such should be, and uni- 
formly be the effect, we can never explain ; we can only 
refer it to the constitution of nature, as established and or- 
dained by the great Author. It is the same in the moral 
world. The subjects are indeed different, and so are the 



APPENDIX. 287 

relations and the results ; these are moral, not physical : 
they are also discerned by a dift'erent faculty, a moral per- 
ception, a faculty of the mind by which it perceives moral sub- 
jects, relations, and results. When an individual is placed 
in a certain situation, that of a parent, for instance, in this 
situation he perceives certain moral relations subsisting be- 
tween him and the child, from which he perceives to result 
certain moral duties. He finds that all others have the same 
perception of the same relation and its results; that it is 
common to man. It is perceived, or rather felt, that these 
duties are obligatory ; hence it is considered a law, a law of 
nature, a moral law. The former which we mentioned are 
the result of physical relations and combinations, this of 
moral relations ; that a law of matter, this of miud ; that of 
physical necessity, this of moral obligation ; that we conceive 
to exist, without intelligence or consciousness in the subject, 
this cannot exist "without intelligence and consciousness. 
Further, the latter exists in social relations ; exclude social 
relations, and moral obligation is excluded. For .what can 
be the moral obligation of a being, in other respects lil^e 
man, placed in total exclusion from all relation to any sen- 
tient, intelligent being, connected with objects and beings 
merely physical ? Certainly it is a thing not easily to be 
conceived. Social, intelligent beings are the only subjects, 
and principal objects of moral law. I do not say the only 
objects, because I Avould Avillingly extend it to all sentient 
beings. Hoav do we determine what a moral law is ? Cer- 
tainly from a common perception. Suppose a being, formed 
in other respects like, man, but never endowed with the 
faculty of moral perception ; to such a being there could be 



288 



APPENDIX. 



no moral law, no moral obligation. In any class of moral 
relations, however complicated, the perception of the result 
is as simple as that of unity. It cannot be communicated to 
any one who has not a capability of the same moral percep- 
tions, when the same moral relations are presented to view. 
So to present them, is the great business of moral instruc- 
tion ; the result must be referred to the common perception, 
or as some writers have expressed it, to the common sense 
of mankind. 

We are now prepared to inquire, on what original foun- 
dation rests the right of property. Whether it be recog- 
nized by the natural law, or originates solely in civil histitu- 
tions. Every one, attending to the operations of his own 
mind, in certain circumstances, perceives between himself 
and some external objects, certain relations from which re- 
sults to his mind a right — a perception that the thing is 
his — a right of property. He perceives in like circum- 
stances the same relations betAveen another person and cer- 
tain other objects, with the same result — a right of property, 
which may be expressed, an exclusive right of dominion in 
and over the thing or subject contemplated. He finds also 
that the perception is common and universal ; that all man- 
kind, although it may be a question whether the relation has 
arisen in a particular case, and under certain circumstances, 
asree in the 2:eneral result. If what has been before ob- 
served concerning the origin and proof of physical and moral 
laws, be correct, the right of property is found to stand on 
the same foundation, for proof of its existence, in natural 
law, as any moral right or duty whatever. It is true it 
seems not to be a law of physics ; it seems not in itself a 



APPENDIX. 289 

moral law, but it has an important place in a very extensive 
class of moral relations, from which moral duties result — in 
all those cases in which the maxim applies, Sic utere iuo ut 
alienum non Icudas, and do good to those who have need, 
according to your means. 

Natural law arises from the constitution of man, as or- 
dained by his Creator, and from the relations in which he 
has seen fit to place him to other beings and things. It 
must, therefore, be adapted to the nature of social man, and 
tend generally to his happiness. General ntihty is the end, 
and the final, though not, I apprehend, as some have held, 
the efficient cause of social rights and moral obligation. If 
brought to this test, the natural law, in which is founded the 
right of property, will be found not only generally useful to 
social man, but absolutely necessary. It will be found in 
the most simple, rude state of society, necessary to the sub- 
sistence of the individual, and still more necessary, in any 
advanced stage of improvement. I shall add with some 
corrections, a part of what I wrote many years ago on the 
same subject. As already observed, the relation from which 
results the right of property seems not to be a moral relation, 
nor wholly a corporeal relation of parts. The relation be- 
tween me and the table on which I write at present, by 
which it is mine, seems to have nothing of a moral quality in 
it, without the intervening relation of another person. It is 
doubtless very simple ; it has never been defined, otherwise 
than by the mode of acquisition ; as the price of land is, As 
he bought it, it was given to him, it came to him by descent. 
Indeed to simple objects, whether of substances or relations, 
names are necessary, but definitions are useless and imprac- 



290 APPENDIX. 

ticable. Nature has denied them in every instance. The 
discovery, therefore, of a simple object, a simple relation, or 
of a result, Avhich is always simple, is not from reasoning, but 
from intuition. This perception of the relation and right of 
property, though at first very hmited, a mere capabihty, and 
like the other faculties subject to a course of improvement, 
is discovered in the early stages of hfe. The child has 
clearly a sense of the right of property, though very little, if 
any, of the modes of acquisition. He appears, before he is 
capable of consequential reasonmg, as clearly to understand 
his right to his rattle-box, as the adult to his horse, purchased 
with his money or his labor ; and vindicates his right of 
property with as much apparent consciousness of that right. 
The perception, however, extends little further than his own 
right ; it can hardly be said to extend to the rights of others. 
Many brute animals to which we have denied the power of 
reasoning and investigation, appear evidently to have some 
sense of property. Give a bone to a dog, he takes it boldly 
as his own ; let another attempt to rob him of it, he stands 
boldly in its defence, with a seeming consciousness of his 
right of property, while the aggressor approaches with an 
apparent consciousness of his guilt. The ox claims his right 
to his stall, and the dog to his wonted corner. Instances 
have been given of a sense of this right, in the ape, the 
beaver, the stork, and some other animals, which have not 
fallen under my observation. I therefore omit them. 

It would be strange if Providence had been less kind to 
man than to the brute creation — man, to whom property is 
so extensively useful, and which, in a state of society, be- 
comes the object or instrument of most of his moral actions. 



APPENDIX. 291 

It is to be observed, that the perception is only of the right 
or the relation which constitutes property, but extends not to 
the mode of acquisition, any farther than they contribute to 
the relation. These modes, according to the state of society, 
may be very various. In the early stages of society, or 
what is frequently called a state of nature, the objects of 
property are almost as few, and the modes of acquisition 
nearly as simple as among many species of the brute crea- 
tion. The objects of property are those things only Avhich 
are necessary to support existence. The modes of acquisi- 
tion mostly confined to prior occupancy, and some trifling 
productions of labor. The simple modes of gift and ex- 
change are soon added. In the progress of society, men 
learn to apply to their use, either for their necessities or 
pleasure, most of the numerous productions of nature. By 
the assistance of art, as the powers of the mind expand, 
they vary and multiply these without end. In proportion as 
men enlarge their views of what is useful or agreeable, the 
hoarding appetite gains strength ; they become eager of the 
present, and provident of the future. The objects of pro- 
perty become equally numerous with the objects of desire. 
In such a state the modes of acquisition are greatly multi- 
plied, and are made the subject of a great variety of laws 
and regulations. The whole business of property now ap- 
pears to be an artificial system ; but the modes of acquisition 
and the means of protection only are the subjects of artificial 
regulations. The right itself of property, as already shown, 
is founded in the law of nature, and is antecedent to all civil 
regulations ; the modes of acquisition serve only to bring 
the subject of property within the right. 



292 APPENDIX. 

Here let me observe, from this view of the right of pro- 
perty, we clearly discover that it is not, as many writers have 
asserted, a creature of the civil law only. The position, 
that, on a dissolution of government, all property is annilii- 
lated, and that every revolution of government, or radical 
change, is destructive of the right of property, is, by no 
means, just. Civil protection only is lost, the security of 
enjoyment is endangered, the right itself founded on the law 
of nature, remains unchanged. Without this perception, 
which I have so often mentioned, the right of j^roperty would 
be but weakly guarded by the moral sense. Were it a dis- 
covery of reason, a conclusion from its convenience in so- 
ciety only, it must want a considerable maturity of the rea- 
soning powers ; it must be wholly unattainable to children ; 
and certainly no person until he had, in one way or another, 
attained the perception, would feel any obligation of re- 
stramt. Force alone could prevent a constant violation of 
the right of property. Prohibitory laws would be considered 
as so many arbitrary impositions. How much better is the 
plan of Providence. Who can forbear to admire the wisdom 
displayed by the Author of our being, in the adjusting of the 
nature of man to that social and civil state, which he has 
ever found necessary not only to his happiness, but to any 
tolerable existence in life ? Deity has implanted in man the 
germ of every necessary qualification, and left to him the 
cultivation ; more, it is probable, could not be indulged to a 
moral agent. 



No. 6. 



OBSERVATIONS 

ON 

MR. CALHOUN'S EXPOSE OF HIS NULLIFICATION 

DOCTRINES, 

PUBLISHED IN THE RICHMOND WHIG. 



37 



I 



OBSERVATIONS. 



4 

We understand Mr. Calhoun to hold, 1, That the prin- 
ciple contended for by South Carolina (nullification,) was 
at the bottom of the contest between the federalists and re- 
publicans, (anti-federalists.) 

2. That the national government is a compact between 
separate sovereignties, (the states,) to which the whole 
people were not parties. 

3. That these separate sovereignties have the right, each 
for itself, to judge of any violation of that compact by the 
general government ; and on this principle depends the 
security of liberty. 

4. That the supreme court of the United States is not 
constituted a common judge between the parties. It has no 
political jurisdiction, and besides, from the manner in which 
it is constituted, it cannot be considered as an impartial tri- 
bunal in cases of this nature. 

5. That in all free governments each separate interest 
must have a right to protect itself ; that in questions bearing 
on those interests, the majority, as such, have no right, that 
is, of absolute control. 



296 APPENDIX. 

6. That a state may peaceably and efficaciously resort 
to the right of self-protection, and may, within the limits of 
its jurisdiction, nullify any law of the general government, 
bearing hard on the particular interests of the state ; still 
remaining subject to all the laws of that government, except 
the laAV so nullified. 

7. That the tariff is unjust, unconstitutional, and oppressive. 

8. That the period of the payment of the national debt is 
the crisis for which the southern states will wait, expecting 
a modification or total repeal of the tariff laws. 

9. That the next session of congress will be the only time 
for modifying the tariff, &c. 

10. He does not define the remedy to be adopted if the 
tariff be persisted in, but leaves us to suppose it will be 
nullification. 

11. He is indisposed to resort to any remedy by state 
authority, until the crisis shall arrive. 

12. He declares himself a friend to manufactures, and 
disposed to give them every incidental encouragement. 

It is, in some sense, true, that the principle for which 
South Carolina contends, and which is here advocated by 
Mr. Calhoun, — the right of a state to nullify a laAv of the 
general governmant, — Avas at the bottom of the contest be- 
tween the two great parties, which originated at the time of 
the formation and adoption of the federal constitution, 
then denominated federalists and anti-federalists. The anti- 
federalists, who were the minor party in the general conven- 
tion, objected to the poAvers proposed to be given to the 
general government, because they said those poAvers Avould 



APPENDIX. 297 

not only restrict the sovereignty of the individual states, but, 
in some instances, wholly take it away, so that, in future, 
instead of being sovereign and independent, they Avould be 
nothing more than corporations subject to the general gov- 
ernment, the constitution of which, and all laws made in 
pursuance of that constitution, are declared to be the su- 
preme laws of the land. The same objections, in substance, 
were urged, in the conventions of the several states, by those 
who Avere opposed to the adoption of the constitution. It 
was agreed by those Avho were in favor of its adoption, that 
the constitution, if adopted, would take from the individual 
states the independent national sovereignty, and vest it in 
the general government for the Avhole nation ; that there 
were provided certain limitations upon the internal sove- 
reignty of the several states, which, it was believed, the 
general good requu'ed, — limitations clearly expressed, and 
sufficiently marked ; leaving to each state, in everything 
else, the whole internal sovereignty, and that unassailable as 
far as it could be guarantied by that constitution. After 
the adoption of the constitution, and imder the presidency 
of Washington, those who were opposed to the adoption of 
that instrument had formed a strong party, both in and out 
of congress, at the head of which was Mr. Jefi'erson. Pro- 
fessing to be zealous advocates of state rights, and fearful of 
what they deemed the consolidating tendency of the powers 
granted by the constitution, they soon became almost indis- 
criminate opposers of the measures of government. Those 
who have had a personal acquaintance with the political 
transactions of those times, or have read with attention the 
debates in congress, and the publications of that day, Avill 



298 APPENDIX. 

be convinced that the party contended, for the most part, for 
reducing the powers of government within the limits which 
they would themselves have prescribed in forming the con- 
stitution, without regard to the actual hmits prescribed by 
that instrument. 

This contest, like all contests of a political nature, soon 
degenerated into a contest for power, a contest of ambition, 
accompanied with all the excitement, the misrepresentations 
and virulent abuse, to which political parties usually resort, 
so that it may be asserted, with the confidence of truth, that 
the prevalence of the party, which brought Mr. Jefferson 
into power, was a triumph of ambition, a triumph of party, 
not of principle. This will appear very evident to any one, 
who will impartially examine the measures pursued by one 
party, the Federalists, under the administration of Washing- 
ton, and the elder Adams, and the measures pursued by the 
other party under the administration of Mr. Jefferson, and 
his successors. He will find that the latter have givenj at 
least, as extended a construction to the constituted powers 
of congress, and have pushed their acts as near the verge of 
those powers, as did the party of Avhom they so loudly com- 
plained, and whom they succeeded. They indeed suffered 
the act, establishing the Bank of the United States, which 
they had always condemned as unconstitutional, to expire 
by its own limitation. But, finding by experience that it 
was highly expedient, or, in the language of the constitution, 
that it was necessary and proper, to any economical admin- 
istration of the finances, that there should be a bank of the 
United States, they established another on the same princi- 
ple, as it relates to the constitutional question, as the former 



APPENDIX. 299 

bank. The purchase of Louisiana, and the several acts for 
laying and enforcing a general embargo, are instances of 
constitutional powers taken by construction, and pushed, one 
may say, to the extreme point ; and "which were held by 
very many, among whom were men of the first talents, to be 
unconstitutional, particularly the latter, the embargo laws. 
The expediency of those laws may well be doubted, but that 
they were within the constitutional powers of congress, is, I 
believe, now doubted by no discerning jiu-ist, or by any one 
deserving the character of a sound statesman. But there 
was one act passed diu'ing Mr. Jefferson's administration, 
that was a gross violation of the constitution. ]\Ir. Living- 
ston, now secretary of state, then residing in Louisiana, had 
purchased a very valuable tract of land in, or adjoining, the 
city of New Orleans ; it was reported to Mr. Jefferson as 
being public land, belonging to the United States. Mr. Jef- 
ferson, by message, gave this information to congress, and 
recommended that a remedy should be provided for the re- 
moval of intruders on public lands. On which an act was 
immediately passed, authorizing the president of the United 
States, on information of such intrusion, to issue his precept 
to the marshal of the district or territory, for the removal of 
the intruder. On which the president, Mr. Jefferson, imme- 
diately issued his precept, and JNIr. Livingston was thereupon 
put out of possession without trial or inquest. Mr. Livmg- 
ston, considering the act as unconstitutional, and the precept 
as illegal, commenced an action of trespass against Mr. Jef- 
ferson, in the circuit court of Virginia district. But it failed, 
on an objection taken by Mr. Jefferson's counsel, that the 
action being for trespass on land, Avas local, and the land 



300 APPENDIX. 

not lying in the district of Virginia, it eoiild not be there 
tried. Mr. Livingston brought an action for the recovery of 
the land in the proper court, and recovered on his title. 
This was done by the man and the party who had boasted 
that the constitution was saved by them at its last gasp. 

Mr. Calhoun states, as a leadmg principle, that " the gen- 
eral government emanated from the people of the several 
states, forming distinct politicaf communities, and acting in 
that separate and sovereign capacity ; not from all the peo- 
ple as one aggregate political community ; that the constitu- 
tion of the United States is in fact a compact, to which each 
state is a party in the character already described, and that 
the several states or parties have a right to judge of its in- 
fractions, and in case of a deliberate, palpable, and danger- 
ous exercise of powers not gi'anted, they have a right, in the 
last resort, to use the language of the Vu-ginia resolutions, to 
interpose for arresting the progress of the evil." 

It is true that in forming, or rather in executing the com- 
pact establishing the general government, the people of the 
several states acted separately, each for themselves and their 
respective communities ; still the binding force of the act de- 
pended on the concurrent acts of the people of all the states 
in their separate conventions. The people in no instance 
acted in the capacity of that sovereignty, which by their state 
conventions, they had entrusted to their then respective gov- 
ernments, as organized. They acted in the capacity of that 
primitive sovereignty, by which they had formed their seve- 
ral state constitutions, retaining the power of altering and 
modifying those constitutions, in each case, as they should 
find the public good to require. The Federal compact thus 



APPENDIX. 301 

ratified and executed, by tlie people of each state, became a 
mutual compact between all the people of the United States, 
binding upon themselves and their several state governments. 
In strictness of speech, the people were the original parties, 
and their respective states, their authorized agents, so far as 
empowered by their several state constitutions, and the con- 
stitution of the general government. In this character, and 
so far, the separate states, each acting through the organ of 
its own government, may with propriety be considered as 
parties to the federal compact. 

According to the principles of our political institutions, it 
was necessary that the constitution of the general govern- 
ment should be submitted, for ratification, to the people of 
the United States, because the acts and laws of that govern- 
ment were intended to operate, and to be carried into effect, 
not upon the states as such, but directly upon the people 
themselves. It was also necessary that it should, for that 
purpose, be submitted to the people of each, separately and 
distinctly, because it was necessary to any beneficial opera- 
tion of that government, that very considerable alterations 
should be made in all the existing state constitutions, and 
that, as far as it related to that government, they should be 
reduced to a uniformity. This was proposed to be effected 
by provisions inserted in the proposed constitution of tlie 
general government, Avhich being adopted and ratified by 
the only competent authority, the sovereign people of each 
state, by themselves, all the necessary alterations, modifica- 
tions, and limitations of power under the state constitutions 
would be effected, and the requisite uniformity produced. 
But the people of one state have no possible right or power 

38 



302 APPENDIX. 

to act with the people of another state, in forming, ahering. 
or amending their constitution. It was therefore necessary, 
that the people of each state should act by themselves. 

Now if the people of the several states had, as a prelimi- 
ijary step, made the same alterations in their several state 
constitutions, as were effected by the constitution of the 
general government ; and then the people of each state had 
sent their delegates to a general convention, with full pow- 
ers for that purpose, and such convention had ratified the 
constitution of the general government, this act of ratifica- 
tion would have been the act of the sovereign people of each 
state, equally binding on themselves, and their respective 
governments ; and the states would have been parties to the 
compact in the same sense that they now are, and no other. 
It is not in the power of human ingenuity to find or make 
an available distinction in the result. 

In fact, however, the great question is, not whether the 
individual states are in any sense parties to the compact, but 
what character they sustain as parties. The writer seems 
to have been sensible of this .; he has, therefore, as well as 
those whom he cites as authority, without hazarding any 
proof or argument, assumed that the states among them- 
selves, and in their relation to the general government, sus- 
tain the right, the power and character of independent sove- 
reignties. Hence is claimed the right of each to judge for 
itself. If what is here assumed be true, it is also true, that 
in questions arising between one state and another, and 
between a state and the general government, no common 
judge can be authoritatively interposed. 

To come to a proper decision on this subject, it is neces- 



APPENDIX. 803 

sary to examine it a little more at large. This right of a 
state, under our government, to judge definitely for itself, of 
the constitutionahty of an act of congress, has been gen- 
erally, if not universally, claimed by its advocates as a right 
reserved to the state, by the 12th article of amendments to 
the constitution, which is in these words : — " The powers 
not delegated to the United States, by the constitution, nor 
prohibited by it to the states, are reserved to the states re- 
spectively or to the people." Now the grant of a power 
contains, not only the power literally expressed, but by una- 
voidable inference, all those subordinate powers, without 
which the power expressed could not have any effect, or 
the effect manifestly intended. So in regard to prohibited 
poAvers. The prohibition extends not only to those powers, 
which are expressly prohibited, but such as are compre- 
hended by necessary inference, or, which remaining, would 
defeat the prohibition. Those powers are also in this view 
to be considered as prohibited which are exclusively dele- 
gated, or being delegated, from their nature, or the nature 
of the subject, cannot be exercised both by the government 
of the United States and the state governments at the same 
time. 

This is a sound and universal rule of construction, under- 
stood and acted upon by those who proposed, and those 
who adopted, the constitution and the amendments. In- 
deed, the amendment is merely declaratory of the con- 
struction originally intended, and well understood. It was 
inserted merely from abimdant caution. Keeping in mind 
this rule of construction, let us inquire whether the right of 
a state to pass, for itself, a final judgment on the const it u- 



304 APPENDIX. 

tionality of a law of congress, which necessarily impUes the 
sovereignty and independence of the state, from which alone 
it can be derived, is one of the rights reserved in the amend- 
ment above recited. If this right, and the power from which 
it must have been derived, are included in the reservation^ 
the po-wer must have existed in the several states at the 
time of the compact, and by that compact have not been 
prohibited to the states, either expressly or by unavoidable 
inference, agreeably to the rule of construction laid down. 
That an equivalent power existed in the several states under 
the old confederation, cannot and need not be denied. It 
was the result of that independent sovereignty then possessed 
by each state. The old confederation Avas not a national 
union, but a federal connection, — a league between thirteen 
sovereign, independent states, — or we may with propriety 
say, nations, by which they agreed to submit the manage- 
ment of their common concerns to a congress, the members 
of which were appointed by each state, and in whose de- 
liberations each state had an equal voice. Under that confed- 
eration there Avas no estabhshment of a judiciary to be a 
common judge between the parties ; no efficient executive 
power to carry their measures into effect. The ordinances 
and acts of that body, therefore, notwithstanding any style 
of authority they might assume, were, in all things relating 
to the states, merely recommendatory of certain measures 
which could not be carried into effect without the concurrent 
act of each and every state in Avhom resided the judiciary 
and only efficient executive powers. A fuU conviction from 
experience of the utter inefficiency of that government, if it 
deserved the name of government, Avhich dissolving in its 



APPENDIX. 305 

own weakness, and threatening general anarchy or dissolu- 
tion, even of the state governments themselves, led to the 
formation and adoption of the present constitution of the 
United States. It becomes, then, an important question, 
how far and to Avhat purposes that independent sovereignty, 
which previously existed in the states severally, was, by the 
adoption and ratification of the constitution, transferred by 
the sovereign people of each, to the general government, 
and its exercise prohibited to the several states, with certain 
hmitations on their internal sovereignty, which it was be- 
lieved the general and national interests required. Mr. Cal- 
houn has cited several authorites in support of his assump- 
tion of state rights, but has not referred, as I think, in a sin- 
gle instance, to the authority of the constitution, which, as 
he considers the right claimed, as a right reserved to the 
states in the amendment recited, and therefore a constitu- 
tional right, ought to be considered paramount to all others. 
Before I examine his authorities, I shall recite from the con- 
stitution the powers delegated to congress, the limitations 
and modifications of those powers, and the prohibitions and 
limitations unposed on the powers of the several states. 
From these, and these alone, can we learn whether the 
power, from which alone the contested state right can be 
derived, could possibly remain to be a subject of reservation. 

The principal powers delegated to congress are contained 
in the first article of the constitution, as follows : 

Sec. 8th. The congress shall have power to lay and col- 
lect taxes, duties, imposts, and excises ; to pay the debts, 
and provide for the common defence, and general welfare of 
the United States ; — to borroAv money on the credit of the 



1 



306 APPENDIX. 

United States ; — to regulate commerce with foreign nations, 
and among the several states, and with the Indian tribes ; — 
to establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcy, throughout the United 
States ; — to coin money, regulate the value thereof, and of 
foreign coin, and fix the standard of weights and measures ; 
— to provide for the punishment of counterfeiting the secu- 
rities and current coin of the United States ; — to establish 
post-offices and post roads ; — to promote the progress of 
science ; — to constitute tribunals inferior to the supreme 
court ; — to define and punish piracies and felonies, com- 
mitted on the high seas, and offences against the law of na- 
tions ; — to declare war, grant letters of marque and repri- 
sals, and make rules concerning captures, both on land and 
water ; — to raise and support armies ; — to provide and 
maintain a navy ; — to make rules for the government and 
regulation of the land and sea forces ; — to provide for 
calhng forth the mihtia to execute the laws of the Union, to 
suppress insurrections and repel invasions ; — to provide for 
organizing and arming the militia, and for governing such 
part of them as may be employed in the actual service of the 
United States, reserving to the states respectively the ap- 
pointment of the officers, Sec. To make all such laws as 
shall be necessary and proper for carrying into execution 
the foregoing powers, and all other powers vested by this 
constitution in the government of the United States, or any 
department or officer thereof. 

Sec. 10th. No state shall enter into any treaty, alliance or 
confederation ; grant letters of marque and reprisal ; coin 
money, emit bills of credit, make anything but gold and 



APPENDIX. 307 

silver coin a tender in payment of debts ; pass any bill of 
attainder, ex post fado \a\Y, or law impairing the obligation 
of contracts, or grant any title of nobility. No slate shall, 
withont the consent of congress, lay any imposts, or duties 
on imports or exports, except what shall be absolutely ne- 
cessary for executing its inspection law, &c. No state shall, 
without the consent of congress, lay any duty of tonnage, 
keep troops or ships of war in time of peace, enter into any 
compact or agreement with another state, or *Avith a foreign 
power, or engage in war unless actually invaded, or in such 
imminent danger as will not admit delay. 

The second article provides for an executive power. 

Sec. 1st. The executive power shall be vested in a presi- 
dent of the United States of America. He shall hold his 
office for four years. (The remainder of the section pro- 
vides for his appointment, together with that of the vice 
president.) 

Sec. 2d. The president shall be commander-in-chief of the 
army and navy of the United States, and of the mihtia of the 
several states when called into the actual service of the Uni- 
ted States. And shall have power to grant reprieves and 
pardons for offences against the United Stales, except in 
cases of impeachment. He shall have power, by and with 
the advice and consent of the senate, to make treaties, pro- 
vided two-thirds of the senators present concur. He shall 
nominate, and, by and with the advice and consent of the 
senate, appoint ambassadors and other public ministers and 
consuls, judges of the supreme court, and all other officers 
of the United States whose appointments are not herein oth- 
erwise provided for, and which shall be established bv law. 



308 APPENDIX. 

Sec. 3d. He shall from time to time give to congress in- 
formation of the state of the union, (fee. &c. He shall re- 
ceive ambassadors and other public ministers, and shall take 
care that the laws be faithfully executed, and shall commis- 
sion all officers of the United States. 

The third article provides for a judiciary. 

Sec. 1st. The judicial power of the United States shall be 
vested in one supreme court, and in such inferior courts as 
congress may, from time to time, ordain and estabhsh. The 
judges, both of the supreme and mferior courts, shall hold 
their offices during good behavior, and shall, at stated times, 
receive for their services a compensation, which shall not be 
diminished during their continuance in office. 

Sec. 2d. The judicial power shall extend to all cases in 
law and equity, arising under the constitution, the laAvs of 
the United States, and treaties made, or which shall be made 
under their authority. In all cases affecting ambassadors, 
and other public ministers and consuls ; to all cases of ad- 
miralty and maritime j luisdiction ; to controversies to which 
the United States shall be a party ; to controversies between 
two or more states, — between a state and citizens of an- 
other state, — between citizens of different states, — between 
citizens of the same state claiming lands under grants of 
different states, — and between a state, or the citizens there- 
of, and foreign stales, citizens or subjects. But, by an 
amendment to the constitution, it is provided, that the judi- 
cial power shall not be considered to extend to any suit in 
law or equity, conmienced against one of the United States 
by the citizens of another state, or by the citizens or subjects 
of any foreign state. In all cases" affecting ambassadors, 



APPENDIX. 309 

Other public ministers and consuls, and those to which a 
state shall be a party, the supreme court shall have original 
jiu-isdiction ; in all other cases before mentioned, the supreme 
court shall have appellate jurisdiction, both as to law and 
fact, whh such exceptions and imder such regulations as con- 
gress shall make. 

Art. 4th, sec. 1st. Full faith and credit shall be given in 
each state to the pubhc acts, records and judicial proceed- 
ings of every other state, and the congress may, by general 
laws, prescribe the manner in which such acts, records, and 
proceedings shall be proved, and the effect thereof. 

Sec. 3d. NeAv states may be admitted by congress into 
this Union ; but no new state shall be formed, or erected 
Avithin the jurisdiction of any other state; nor any state be 
formed by the j miction of two or more states, or parts of 
states, without the consent of the legislatiures of the states 
concerned, as well as of congress. 

Sec. 4th. The United States shall guaranty to every state 
in this Union, a republican form of government, and shall 
protect each of them against invasion ; and on the application 
of the legislature, or of the executive Avhen the legislature 
camiot be convened, against domestic violence. 

Art. 5th. This constitution and the laws of the United 
States Avhich shall be made in pursuance thereof, and all 
treaties made, or which shall be made, under the authority 
of the United States, shall be the supreme Imv of the land; 
and the judges in every state shall be bound thereby ; any- 
thing in the constitution or laws of any state to the contrary 
notwithstanding. 

The senators and representatives before mentioned, and 
39 



1 



310 APPENDIX. 

the members of the several state legislatures, and all execu- 
tive and judicial officers, both of the United States, and of 
the several states, shaU be bound by oath to support this 
constitution. 

On a fair, open and candid examination of the articles 
above recited, it cannot be denied that the sovereign people 
of the several states, each acting for themselves, but with a 
reciprocal view to the acts of all, did, by the ratification of 
tliat solemn covenant, the constitution of the United States, 
delegate to the general government, aU those powers in 
which the independent sovereignty of a state or nation, in 
the common, as well as the technical understanding of the 
term, consists ; and did further prohibit to the several states 
the exercise of those poAvers, and even of some other speci- 
fied powers, the exercise of which by the several states 
might obstruct the national union intended, and the recipro- 
cal enjoyment of national privileges, by the citizens through- 
.out the whole. There is also by the same instrument 
established, an executive power, charged with the faithful 
execution of the laws, and a judicial power to be vested in a 
supreme coiu't, and m such inferior courts as congress may 
ordain and establish, with a provision for rendering the 
judges as independent and impartial as could be devised by 
human wisdom. This judicial power is expressly extended 
to all cases in law and equity, arising under the constitution 
and laws of the United States, and treaties made under their 
authority ; and among other things, to controversies to 
which the United States shall be a party — to controversies 
between two or more states, &c. 

Here we find a tribunal appomted to be a common judge 



APPENDIX. 311 

in all constitutional questions that may arise between the 
parties, expressly including,^among others, the United States 
and the several states, as such parties. Nor is there any 
case, so arising, excepted from the authority of its decisions. 
And when we find it further declared by the same compact, 
and by the same competent authority, the sovereign people, 
that the constitution which embraces all its provisions in 
every department, and all laws made in pursuance thereof, 
shall be the supreme law of the land, binding on the judges 
of every state, notwithstanding anything in the constitution 
or laws of any state to the contrary ; and that, not only the 
senators and representatives in congi'ess, but the members of 
the state legislatures, and all executive and judicial officers, 
both of the United States and of the several states, shall be 
bound by oath or affirmation to support the constitution, — 
it would appear utterly impossible, that any rational being, 
capable of understanding what he reads, should maintain 
that each state in the Union has a constitutional right to 
judge for itself definitely of the constitutionality of an act of 
congress, and if so judged to be unconstitutional, to suspend 
its operation Avitliin the jurisdictional limits of the state. 
And yet such is the opinion maintained by Mr. Calhoun. 
He has not in any part of his expose examined the powers 
delegated to the general government, nor the powers prohib- 
ited to the states, by the constitution of the United States, 
declared to be the supreme law over all the states, repeal- 
ing, in effect, and nullifying every claim of right, every grant 
of power in their several constitutions, conflicting, or not 
consistent with the provisions of that instrument. He has 
gratuitously assumed the power, and the right as remaining 



312 APPENDIX. 

in the several states, and therefore reserved to them by the 
amendments to the constitution. ' Instead of the constitution, 
he has reposed on several authorities, which from their 
weight of character, and the reasonings accompanying them, 
he considers to be irresistible. Although I think the consti- 
tution alone, Avhen fairly examined, conclusive upon this 
subject, I will nevertheless proceed to a fair and full exam- 
ination of his authorities. Let us then consider, first, 
what weight ought to be conceded to them as authorities, 
when we consider the circumstances and situation of the 
authors themselves ; in doing which, we may briefly con- 
sider some opposing authorities, — and, secondly, consider 
the force of their reasonings, and the justness of their con- 
elusions. 

The origin of the two parties, and the causes of their hos- 
tility toward each other, has already been mentioned. To 
these causes were soon added others, of a still more exciting 
nature. Not long after the organization of the government 
of the United States under the federal constitution, the 
French revolution broke out. At its commencement it was 
hailed by all parties in this country as the dawn of liberty to 
Europe, and the commencement of a new and glorious era, 
in the progress of which they beheld, in imagination, the 
downfall of tyrannical and despotic governments, and the 
people and nations of that quarter of the globe restored to 
their rights, to the enjoyment of happiness under liberal 
institutions, all tending to the amelioration of the whole 
human race. But the scenes of anarchy and blood that 
ensued, the atrocities enacted by the leaders, who succes- 
sively fell under the guillotine, to make room for their more 



APPENDIX. 313 

successful, but not less atrocious rivals, soon darkened the 
prospect, and disgusted, very generally, the federal party, 
then constituting a powerful majority ; while the anli-federal 
party, who soon assumed the name of democratic, and 
afterwards that of the republican party, fraternized with the 
French revolutionists, and either excused or justified all 
their atrocities. And when, soon after, the French nation, 
having formed somewhat of a more regular government, 
had become involved in war with the great powers of 
Europe, in violation of existing treaties, as well as of the 
known law of nations, let loose their cruisers upon the com- 
merce of unoffending neutrals, of which the United States 
then had the greatest share, and were ready to sweep it 
from the ocean, that party still maintained their predilec- 
tions, still excused or justified all those depredations, by 
which our merchants Avere robbed of milhons. Our govern- 
ment remonstrated against these measures. The French 
government treated their remonstrances with contempt, and 
their ministers, sent to negotiate on the subject, were treated 
with neglect or contumeliously dismissed. "Whereupon con- 
gress determined to take measures for protecting their 
citizens and their commerce, and placed the nation in a 
state of war with France. Both parties were now in the 
highest state of excitement, and the nation was inundated 
with violent and inflammatory publications, issuing from the 
presses on each side against their opponents. The presses 
of the republican party were daily uttering the vilest calum- 
nies, replete with the most unfounded falsehoods, against the 
majority in congress and the principal functionaries of the 
government, especially against the president, Mr. Adams. 



314 



APPENDIX. 



At this crisis, congress passed two acts, which added much 
to the excitement of parties. The one, enabling the presi- 
dent to send suspected ahens out of the country, commonly 
called the alien act ; the other, an act for punishing any 
person who should publish, by writing, any libellous matter 
against the president, for any act done' in the execution of 
his official duties, commonly called the sedition laAv, with a 
provision that any person prosecuted under the act, should 
have the hberty and right to prove, in his defence, on trial, 
the truth of the matter published. The latter act the more 
exasperated the party in opposition, because they foresaw 
that its penalties would fall Avholly upon the writers and 
presses on their side ; they therefore denounced it in no 
measured terms, as an usurpation of powers not granted — 
a palpable violation of the constitution, by abridging the free- 
dom of the press, so solemnly and expressly guarantied by 
that constitution. A large majority of the people of Vir- 
ginia, and consequently of their legislature, were zealously 
devoted to the party in opposition, and, indeed, were the life 
and soul of the party at that time. Such was the situation 
of the authors, and such the occasion of those resolutions, 
both in Virginia and in Kentucky. In the passage of the 
two acts above mentioned, according to their construction, 
they found the case of that deliberate, palpable, and dan- 
gerous exercise of a power not granted, in Avhich it is as- 
sumed the several states, not the people, are the parties to 
the constitutional compact, and have a right, as such, to 
judge, and " to interpose for arresting the progress of the 
evil, and for maintaining, within their respective limits, the 
rights and liberties appertaining to them." 



APPENDIX. 315 

These resolutions were communicated to all the other 
states. The legislature of Massachusetts replied to them in 
full, affirming the constitutionality of the laws in question, 
and denying the right of the several states to judge and to 
interpose in the manner asserted. Resolutions, in accord- 
ance with those of Massachusetts, were passed by several of 
the other states, not, as I believe, exceeding three or four ; 
others passed the matter over in silence. It Avill not now be 
denied, that those who passed upon these latter resolutions 
were equal, in point of talents, to their opponents. At the 
same time, it must be acknowledged they were equally in- 
flamed with party zeal, equally ambitious of retaining the 
administration of the government in the hands of this party, 
as were the others for obtaining it for themselves ; simply, in 
point of authority, they stand on equal ground. The author- 
ity of Mr. Jefferson on this subject is opposed by the same 
objections, but which apply to him with augmented force. 
He stood unrivalled at the head, and was, in fact, the oracle 
of his party ; by them destined to enjoy the first fruit of 
their expected triumph, by being elevated to the presidency 
of the United States, the great and ultimate object of his 
ardent ambition. But let us turn to his opinions. It is well 
known to the writer of this, and to all who were personally 
acquainted Avith Mr. Jefferson at the time, that his opinion 
upon the unconstitutionahty of the sedition law, was in ac- 
cordance with that of the Virginia legislature, — if he did 
not dictate that opinion, — he held that it was an abridg- 
ment of the freedom of the press, and Avas, therefore, the 
assumption of a power, not only not granted, but a power 
expressly Avithheld. He also held the alien law to be un- 



316 APPENDIX. 

constitutional. That his opinion on the subject of state 
rights was the same as that expressed in the resolutions, is 
evident from the citations made by Calhoun. Instead of 
opposing to these opinions, the opinions of the several judges 
of the supreme court, judicially pronounced, I will produce 
some of the citizens of Virginia, not less illustrious than Mr. 
Jefferson. Notwithstanding the great majority of the oppo- 
sition party in Virginia, there was a respectable minority, 
who supported the measures and acts of the general govern- 
ment, and were wholly opposed to the opinions and doc- 
trines expressed in the resolutions of their state legislature, 
and, of course, to Mr. Jefferson's opinions on the same sub- 
ject. Among others, was the present Chief Justice Marshall, 
who was a representative from that state in the second con- 
gress, under President Adams's administration ; and the well 
known Patrick Henry — both eminent for talents and judi- 
cial knowledge. The character of Patrick Henry, as a jurist, 
stood as high, and his opinion, in all matters, not affecting 
party interest, had as much weight as that of any man in the 
state, I may safely say more ; certainly more than Mr. Jef- 
ferson, who, however eminent as a party politician, and 
for his profound knowledge in the law of nations, was not 
considered equally eminent as a jurist. Mr. Henry offered 
himself as a candidate for election for the succeeding session 
of the state legislature, on Avhich occasion he published an 
address to the electors of the district, in which he freely ex- 
pressed his sentiments of the state of parties, and of their 
politics. He gives it as his deliberate opinion, that the laws 
so much reprobated, were both constitutional, both within the 
poAvers delegated to the general government ; that the power 



APPEiNDIX. 317 

to remove suspected aliens, in a situation like that then exist- 
ing, was a necessary incident of the war power ; that the 
sedition law in no wise abridged the freedom of the press, 
but applied a wholesome correction to its licentiousness ; and 
that congress had the same constitutional power and right to 
provide for the punishment of false and slanderous hbels on 
any official acts of the president, which might have a direct 
tendency to impair their due efficiency, as they had to pro- 
vide for the punishment of an opposition, by violence, to any 
officer of the government, in the legal execution of his au- 
thority. He also reprobated the doctrine of state rights, as 
assumed in the Virginia resolutions. I will adduce one more 
authority, which, in my view, very much weakens, if it does 
not AvhoUy destroy IMr. Jefferson's authority, as to the con- 
stitutionality of the sedition law — the authority of Mr. 
Jefferson himself. In his inaugural address, on entering 
upon the second term of his presidency, in March, 1805, 
after recapitulating the measures of his administration, he 
goes on to say : " During this course of administration, and 
in order to disturb it, the artillery of the press has been lev- 
elled against us, charged with whatever its licentiousness 
could devise or dare. These abuses of an institution, so 
important to freedom and science, are deeply to be re- 
gretted, inasmuch as they tend to lessen its usefulness, and 
to sap its safety. They might, indeed, have been corrected 
by the wholesome punishment, reserved to, and provided by, 
the laws of the several states, against falsehood and defama- 
tion ; but public duties, more urgent, pressed on the time of 
public servants, and the offenders have, therefore, been left 
to find their punishment iii the pubUc indignation. Nor 
40 



318 



APPENDIX. 



was it uninteresting to the world, that an experiment should 
be fairly and fully made, whether freedom of discussion, un- 
aided by power, be not sufficient for the propagation and 
protection of truth. " After some observations on the suc- 
cess of the experiment, he continues : " No inference is here 
intended, that the laws provided by the states against false 
and defamatory publications, should not be enforced. He 
who has time, renders a service to public morals and public 
tranquillity, in reforming these abuses by the salutary cor- 
rections of law. But the experiment is noted to prove, that, 
since truth and reason have mahitained their ground against 
false o])inions, in league Avith false facts, the press, confined 
to truth, needs no other legal restraint. The public judg- 
ment will correct false opinions and reasoning, on a full 
hearing of all parties ; and no other definite line can be 
drawn between the inestimable hbcrty of the press, and its 
demoralizing licentiousness." 

Mr. Jefferson well knew that there were laws in every state, 
either enacted by statute, or adopted from the common law, 
for the punishment of libels, affecting characters, public and 
private. He also knew that the constitution of each state con- 
tained an imperative declaration, of precisely the same force 
and effect, though not always in the same words, as in the 
constitution of the United States. It is evident, therefore, 
that whatever might have been his former opinions, he now 
admitted and approved the distinction, between the freedom 
and the licentiousness of the press ; the former of which 
could not be abridged, without the violation of an important 
constitutional right ; but the latter, the licentiousness of the 
press, might, and ought to be restrained, by what he calls 



APPENDIX. 319 

the salutary correction of law. This concession, it is 
granted, although it silences the principal objection, urged 
at the time, agauist the constitutionality of the act, does not 
cover the whole ground. It was said to be the exercise of a 
power not granted, and Mr. Jefferson spoke of it as a power 
reserved to the states. Now it is conceded that congress, 
generally speaking, have not the power to punish crimes, 
merely as moral or civil offences. But the power of con- 
gress is necessarily, I may say expressly, extended to the 
punishment of all crimes that immediately and injuriously 
affect the government, injuriously obstruct its legitimate 
measures or impair its efficiency, in carrying into effect any 
of its constitutional powers, in any of its departments or 
offices. 

It is true, the opinion we have just been examining, was 
not produced by Mr. Calhoun as an authority ; but as the act 
of congress upon which this opinion was expressed, was the 
principal occasion of those resolutions, and was chiefly relied 
on as justifying the principles which they adopted and sanc- 
tioned, its discussion here cannot be considered altogether a 
digression. 

We shall now proceed to examine the opinions of Mr. 
JefTerson, which the writer has introduced, as an authority, 
to support his doctrine of state rights. Nor ought we to 
omit the manner in which they are introduced. After hav- 
ing professed his strong attachment to the union of the states, 
he says, " With these strong feehngs of attachment, I have 
examined with the utmost care, the. bearing of the doctrine 
in question, and so far from anarchical or revolutionary, I 
solemnly believe it to be the only solid foundation of our 



320 APPENDIX. 

system, and of the union itself ; and that the opposite doc- 
trine, which denies to the states the right of protecting their 
reserved powers, and which would vest in the general gov- 
ernment (it matters not through what department) the right 
of determining exclusively and finally, the powers delegated 
to it, is incompatible with the sovereignty of the states and 
with the constitution itself, considered as a basis of federal 
union." As strong as this language is, it is not stronger than 
that used by the illustrious Jefferson, who said — " To give 
the general government the final and exclusive right to judge 
of its powers, is to make its discretion, and not the consti- 
tution, the measure of its powers," and that " in all cases of 
compact between parties having no common judge, each 
party has an equal right to judge for itself, as well of the 
operation as of the mode and measm-e of redress." " Lan- 
guage," says Mr. Calhoun, " cannot be more explicit, nor 
can higher authority be produced." 

Here Mr. Jefferson as well as Mr. Calhoun must have 
assumed as a first principle, that each state still retains an in- 
dependent sovereignty. It is also conceded that the govern- 
ment of the United States, within the limits of its powers, 
is possessed of independent sovereignty. This being all 
granted, the rest follows of course — for between independ- 
ent sovereignties there can be no common judge. But from 
an examination of the constitution of the United States, we 
have seen that no such independent sovereignty could have 
been left to the states, consistent with the powers therein 
delegated to the general government, and the prohibition of 
powers to the state governments, and the declared supre- 
macy of that constitution, and the laws made in pursuance 



APPENDIX. 321 

of its powers. Such was the idea of those who framed, and 
those who adopted and ratified that constitution. On this 
principle, was introduced into the constitution, tlie article 
making provision for a judicial power — a tribunal to be a 
common judge between all the parties to the constitution, or 
that might become parties under its administration, and ex- 
tending its jurisdiction to all cases in law and equity, arising 
under the constitution, the laws of the United States, and 
treaties made, or which shall be made under its authority. 
And, as if intended to put the very case under consideration, 
beyond all doubt, the jurisdiction of this tribunal is expressly 
extended to controversies, to which the United States shall 
be a party to controversies between two or more states — 
between a state and the citizens of another state, between 
citizens of different states, between citizens of the same state 
claiming land under grants of different states, and between a 
state and citizens thereof, and foreign states, citizens or 
subjects. And is there any exception to this jurisdiction, 
except what is to be found in an amendment to the consti- 
tution, which is in these words: — "The judicial power of 
the United States shall not be construed to extend to any 
suit in law or equity, commenced or prosecuted against one 
of the United States by citizens of another state, or by citi- 
zens or subjects of any foreign state." 

From a careful and attentive perusal of this, and other 
provisions of the constitution, it apjfears to me so demon- 
strably clear, that I can conceive no possible way of avoid- 
ing the conclusion, but by maintaining not only that cacli 
state in the very face of the constitution, still retains its inde- 
pendent sovereignty, but that this sovereignty is of so high 



322 APPENDIX. 

and transcendent a nature, as to defy the power of the peo- 
ple of each state, and of all the states united, and to render 
inoperative and void every act of the people, the primitive 
sovereignty, in any way tending to its diminution, a position 
which I believe would not have been assumed by Mr. Jef- 
ferson or Mr. Calhoun. 

Another authority is produced from the legislatm'e of Vir- 
ginia, — it is an extract from the report of a committee, at a 
session subsequent to that in Avhich the resolutions, so often 
referred to, was passed, explaining and justifying that reso- 
lution, and of which Mr. Callioun says, "Were it possible to 
settle a question where the passions and interests of men are 
concerned, this point would have been long since settled 
forever by the state of Virginia. The report of her legisla- 
ture, to which I have already referred, has really, in my 
opinion, placed it beyond controversy. Speaking in refer- 
ence to this subject, it says, ' It has been objected,' (to the 
right of a state to interpose for the protection of her reserved 
rights,) ' that the judicial authority is to be regarded as the 
sole expositor of the constitution ; on this objection it might 
be observed, 1st. That there may be instances of reserved 
powers, which the forms of the constitution could never 
draw within the control of the judicial department. 2d. 
That if the decision of the judiciary be raised above the 
sovereign parties to the constitution, the decisions of the 
other departments, not Carried by the forms of the constitu- 
tion before the judiciary department, must be equally autho- 
ritative and final with the decisions of that department. But 
the proper answer to this objection is, that the resolution of 
the general assembly relates to these great and extraordinary 



APPENDIX. 323 

cases, in which all the forms of the constitution may prove 
inefl'ectual against infractions, dangerous to the essential 
rights of the parties to it. The resolution supposes that dan- 
gerous powers not delegated, may not only be usurped and 
executed by the other departments, but that the judicial de- 
partment may also exercise or sanction dangerous poAvers, 
beyond the grant of the constitution ; and consequently, the 
ultimate right of the parties to the constitution to judge 
whether the compact has been dangerously violated, must 
extend to violations, by one delegated authority, as well as 
another, by the judiciary, as well as by the executive or 
legislative." 

The high opinion expressed by Mr. Calhoun of the reason 
contained in^ithis report, as well as the high authority from 
which it comes, entitle it to a serious and candid examina- 
tion. We will therefore consider the reasons offered, both 
separately and in connection, so far as they stand connected. 
The whole is intended to be an answer to the objection to 
the state right which we have been discussing, " That the 
judicial authority is to be regarded as the sole expositor of 
the constitution." " To this (say they) it might be observ- 
ed, first, that there may be instances of usurped powers, 
which the forms of the constitution could never draw within 
the control of the judicial department." 

In every part of this report there is a confusion of ideas ; 
the want, not of a subtle and metaphysical, but an obvious 
and practical distinction — a distinction between the uncon- 
stitutionahty and inexpediency or impolicy of an act or 
measure of the government. In the first case, the unconsti- 
tutionality of an act, or, as it is denominated in the report, 



324 APPENDIX. 

the usurpation of a power not granted ; the constitution itself 
furnishes the rule of decision. Nor can there be found a 
single instance of the kind, in which, by the forms of the 
constitution, it cannot be brought within the control of the 
judicial department. Not a case in Avhich the party injured 
may not bring to a legal decision the question, whether the 
act complained of be an usurpation of a power not granted, 
or the exercise of a power granted by the constitution. But 
as to the expediency or inexpediency, policy or impolicy, of 
an act or measure of the government, in the exercise of a 
constitutional power, the constitution affords no rule of deci- 
sion to a court of law, nor can it be made to afford any rule 
in such cases generally. The constitution has, therefore, 
necessarily, and I may add, wisely left questions of mere 
expediency and policy to the discretion of the legislative or 
executive department, to which the power is committed in 
trust. But the constitution has not left this discretion uncon- 
trolled. It is, by the provisions of the constitution, placed 
under the control of public sentiment, which is exercised by 
the people and the state legislatures, in their elections of the 
president, vice-president, and the members of the national 
legislature, both of the senate and house of representatives. 
The frequency of elections, renders this control constant and 
powerful, and of which those, who are subject to it, can 
never be unmindful. If the distinction taken above be cor- 
rect, of which " really in my opinion " it is impossible to 
doubt, the reason intended to be given in the first observa- 
tion, being founded in false premises, is altogether nugatory. 
They proceed to observe, " secondly, that if the decisions of 
the judiciary be raised above the sovereign parties to the 



APPENDIX. 325 

constitution, the decisions of the other departments, not car- 
ried, by the forms of the constitution, before the judiciary, 
must be equally authoritative and final, with the decisions of 
that department." 

The same distinction which was taken above, is equally 
applicable, and equally available here. The decisions of the 
judiciary are made final and conclusive on the parties, in all 
cases submitted to their jiu'isdiction, and includes all in which 

the constitutionality of the acts and measures of the other 
departments may be brought in question. But, as before 

observed, the expediency and policy of their acts is referred 
to the tribunal of public sentiment. I can, therefore per- 
ceive no more force in the reason of this obser.vation, than 
in that of the first — both appear to me equally nugatory- 
The report then proceeds: — "But the proper answer to 
the objection is," (see the last paragrajih of the report above 
recited.) Tliis is certainly an extreme case which proves 
nothing ; still more, it is a case that can never happen under 
our constitution ; but, w^erc it possible it should happen, a 
remedy would not be sought or obtained, by any right re- 
served to the states by the constitution. No constitution of 
government among men ever has provided, or ever can pro- 
vide for a laAvful resistance to its authority, without insuring 
a perpetual suspension or annihilation of its necessary ener- 
gies, and a universal anarchy. But, it will be asked, can 
no lawful resistance be, in any case, made to the unconstitu- 
tional, to the tyrannical and oppressive acts of a govern- 
ment ? As it relates to civil institutions there cannot, any 
farther than may be done by a resort to the constituted tri- 
biuials, among which is included that of public sentiment, a 
41 



326 APPENDIX. 

tribunal which, under free institutions, is not the least effi- 
cacious. But in cases of violent oppression, where all con- 
stitutional remedies have been tried, and have become hope- 
less, a people or community, in that situation, are discharged 
and freed from all the duties of the constitution, the civil 
compact of the government, however solemnly it may have 
been ratified, and are thrown back upon the law of nature, 
the law of self-protection ; that law which authorizes, nay, 
enjoins, as a duty, resistance to oppression, by force and by 
every attainable means, under the guidance of wisdom and 
prudence. If, in such case of oppression, any one or more 
of the states, or any portion of the people are roused to re- 
sistance, so far are they from acting under a constitutional 
right granted or reserved, that they have assumed the exer- 
cise of their natural rights, in defiance of the constitution. 
On a candid review of this subject, let me ask, what has 
become of those irresistible reasons which, in the opinion of 
Mr. Calhoun, have settled the question and placed it beyond 
controversy ? Gone — vanished into thin air. That this is 
not perceived and acknowledged, is principally to be attri- 
buted to passion and interest. But the delusion one may 
well beheve, could not have been so long and so obstinately 
persisted in, had it not been supported by that confusion of 
ideas already mentioned, and which is so prominent a fea- 
ture in all Mr. Jefferson's theories of our government ; and 
indeed of all the zealous defenders of the independent sove- 
reio-nty of the several states, and their consequent state 
rights, — and is not less conspicuous in the speculations of 
Mr. Calhoun. It seems to have lain like an incubus on his 
mind, benumbing his faculties of discernment, and bewilder- 
ing his imagination in whatever relates to this subject. 



APPENDIX. 327 

I ought not here to omit another precedent taken from 
the same authority — the legislature of Virginia, at a sub- 
sequent period, Avhen the fumes of party excitement had 
passed away and left the mind open to the light of truth, 
and the convictions of reason. It is a precedent which, in 
my opinion, neutralizes, as far as relates to the great consti- 
tutional question under discussion, all the former precedents 
that have been produced, and dissipates all those weighty 
reasons which, in the opinion of Mr. Calhoun, has settled 
the point forever, and placed it beyond controversy. It is 
contained in the following extract from Governor Tyler's 
message to the legislature, and the proceedings of the two 
houses thereupon. 

From Governor Tj/ler^s Message. 

December 4, 1809. — "A proposition from the state of 
Pennsylvania is herewith submitted with Governor Snyder's 
letter accompanying the same, in which is suggested the 
propriety of amending the constitution of the United States, 
so as to prevent collision between the government of the 
United States and the state governments. 

House of Delegates, Friday, December 15, 1809. — " On 
motion ordered that so much of the governor's communica- 
tion as relates to the communication from the governor of 
Pennsylvania on the subject of an amendment proposed by 
the legislature of that state, to the constitution of the United 
States, be referred to Messrs.- Peyton, Otey, &c. 

Thursday, January 16, 1810. — Mr. Peyton, from tlie 
committee to whom was referred that part of the governor's 
communication, which relates to the amendment proposed 



^ 



328 APPENDIX. 

by the state of Pennsylvania, to the constitution of the 
United States, made the following report : — The committee, 
to whom was referred the communication of the governor of 
Pennsylvania, covering certain resolutions of the legislature 
of that state, proposing an amendment to the constitution of 
the United States, by the appointment of an impartial tribu- 
nal, to decide disputes betAveen the states and the federal 
government, have had the same under their consideration, 
and are of opinion, that a tribunal is already provided by 
the constitution of the United States, to wit., the supreme 
court, more eminently qualified from their habits and duties, ' 
from the mode of their selection, and from the tenure of 
their office, to decide the disputes aforesaid, in an enlight- 
ened and impartial manner, than any other tribunal which 
could be created. 

The members of the supreme court are selected from 
those in the United States, who are most eminent for virtue 
and legal learning, not at the will of a single individual, but 
by the concurrent wishes of the president and senate of the 
United States. They will, therefore, have no local preju- 
dices and partialities, the duties they have to perform lead 
them necessarily to the most enlarged and accurate ac- 
quaintance with the jurisdiction of the federal and state 
courts together, and with the admired symmetry of our gov- 
ernment. The tenure of their office enables them to pro- 
nounce the correct opinions they may have formed, without 
fear, favor or impartiality. The amendment to the consti- 
tution, proposed by Pennsylvania, seems to be founded uj)on 
the idea, that the federal court Avill, from a lust of power, 
enlarge their jurisdiction to the total annihilation of the 



APPENDIX. 329 

power and jurisdiction of the state courts; that they will 
exercise their luill instead of the law and constitution. This 
argument, if it proves anything, Avould operate more strongly 
against the tribunal proposed to be erected, which promises 
so little, than against the supreme court, wliich for the rea- 
sons given before, have everything connected .with their 
appointment calculated to insure confidence. What secu- 
rity have we, wore the proposed amendment adopted, that 
this tribunal would not substitute their will and their pleas- 
lure in place of the law ? The judiciary are the weakest of 
the three departments of government, and least dangerous 
to the political rig-hts of the constitution ; they held neither 
the pm-se nor the sword, and even to enforce their own 
judgments and decisions, must ultimately depend on the 
executive arm. Should the federal judiciary, however, un- 
mindful of their weakness, unmindful of their duty, which 
they owe to themselves and their country, become corrupt, 
and transcend the limits of their jurisdiction, would the pro- 
posed amendment oppose even a probable barrier to such 
an improbable state of things. The creation of a tribunal, 
such aij is proposed by Pennsylvania, so far as we can form 
an idea of it, from the description given in the resolutions 
of the legislature of that state, would, in the opinion of your 
committee, tend rather to invite than to prevent colUsions 
betAveen the federal and state courts. It might also become, 
iu process of time, a serious and dangerous embarrassment 
to the operations of the general government. Resolved, 
therefore, that the legislature of this state do disapprove of 
the amendment to the constitution of the United States, pro- 
posed by the legislature of Pennsylvania. Resolved, also. 



330 APPENDIX. 

that his excellency the governor, be, and he is hereby re- 
quested to transmit forthwith, copies of the foregoing pre- 
amble and resolutions to each of the senators and repre- 
sentatives of this state in congress, and to the executives of 
the several states in the union, with a request that the same 
be laid before the legislatures thereof." The reports, with 
the resolutions, having passed through the usual forms, were 
agreed to unanimously, both by the house of delegates and 
by the senate. Any comment on this precedent is unneces- 
sary ; it speaks for itself, in a language too intelligible to be 
misunderstood or perverted. 

The writer, however, still considers his reasons, and those 
of his authorities to be unanswerable. He proceeds to say, 
" Against these conclusive arguments as it appears to me, it 
is objected, that if one party has a right to judge of infrac- 
tions, so has the other, and that, consequently, in a case of 
contested powers, between a state and the general govern- 
ment, each would have a right to maintain its opinion, as in 
the case when sovereign powers differ in the construction of 
treaties, or compacts ; and that, of course, it would come to 
be a mere question of force. The error is in the assumption 
that the federal government is a party of the national com- 
pact." This, is an assumption, which, I believe, has never 
been made ; nor can I suppose any could ever conclude that 
any government ever was, or ever could be, a party, in any 
sense of the word, to the compact, by which it was created, 
and brought into existence. Indeed, when the compact is 
completed, the government still exists in idea only ; it is a 
mere abstract entity, until arranged, and then, though inca- 
pable of becoming by retrospect, a party in its own produc- 



APPENDIX. 331 

tion, yet is it now capable of acting and of being a party, in 
cases which may arise between itself and any of its constitu- 
ents, or others, according to the nature and extent of the 
original compact. But he says, " The states, as has been 
showed, formed the compact, acting as sovereign and inde- 
pendent communities." Answer — It has been shown, and 
so is the fact, that the government of the several stales, in 
the character of independent sovereigns, submitted each to 
the sovereign people of the stale, as the only competent au- 
thority, and from whom they severally derived and held the 
sovereign power in trust, the execution and ratification of the 
federal compact, the constitution of the United States. It is 
the act, and in fact the sole, though concurrent act, of the 
people of each state. And by the same act, by which they 
declared the constitution and laAvs of the United States, and 
treaties made under its authority, to be the supreme law of 
the land — that the judges in the several states should be 
bound thereby, anything in the constitution of any slate to 
the contrary notwithstanding ; and that the members of the 
several state legislatures, and all executive and judicial offi- 
cers shall be bound by oath or affirmation to support that 
constitution, they reduced, as they had competent authority 
to do, the independent sovereignty, which each state had 
before possessed, to a limited sovereignty, intended to har- 
monize with that superior, though, in many respects, limited 
sovereignty, which that act conferred on the general govern- 
ment. Of all this, not a fact can be denied, nor the conclu- 
sion from those facts, as it appears to me, without at the same 
time, denying all existence of principles, and force of reason. 
It is however immaterial in what character the several states 



332 APPENDIX. 

acted on that occasion. The question is, in what character 
they now stand ; what character was fixed upon them by the 
sovereign people, which, and no other, they still continue to 
sustain. What that character is, we have seen clearly de- 
monstrated ; yet he goes on to say, " The general govern- 
ment is its creature, (of the compact,) and though in reality 
a government, with all the rights and authority which belong 
to any other government, within the orb of its power, is nev- 
ertheless a government, emanating from a compact between 
sovereigns, and partaking in its nature and object, of a joint 
commission, appointed to superintend and administer the in- 
terests in which all are jointly concerned j but having, beyond 
its proper sphere, no more power than if it did not exist." 
There is indeed a certain degree of analogy between the case 
he puts, of a joint commission, and that of the general gov- 
ernment. The commissioner, or agent, we may call him, is 
appointed to manage the joint concerns of the principals, and 
has no authority to bind them beyond the powers they have 
given. The general government is constituted with certain 
powers, to be exercised within certain limits ; if the govern- 
ment exceed those powers, or, rather, if it does not adhere 
to, and pursue those powers agreeably to the true construc- 
tion of the constitution, its acts are void ; they are not bind- 
ing on the principals, whether we consider the people, the 
states, or both to be principals. Here the analogy ends. 
Contests may sometimes ai'ise between the commissioner or 
agent, and his principals, whether he has exceeded his 
powers, but more frequently between third parties and the 
principals. Li neither of these cases, however, have the 
principals a right to decide for themselves in the last resort. 



APPENDIX. 333 

The parties may compromise, but the compromise must be 
mutual. If they still persist, the final resort must be to a 
court of law — a court, not established by the compact, but 
by the laws of the country. Very different is the case of the 
general government. In that solemn compact, the constitu- 
tion of the United States, as has been already pointed out, 
there is established a judicial power, which expressly em- 
braces in its jurisdiction, all cases that can arise between the 
general government and any and all the parties to the com- 
pact, relating to the constitutional exercise of its powers, and 
the binding force of its acts ; with the provision of an execu- 
tive power to carry the decisions of the judiciary into final 
effect. Without this provision of an adequate judiciary and 
executive power, it would have been nothing more, perhaps 
something less, than a joint commission. With it, it is a 
government with all the attributes of sovereignty, within the 
limits of its powers. It must, therefore, be seen at once, that 
the analogy sought fails in all the essential points ; that the 
argument built upon it is deceptive, and the conclusions 
wholly fallacious. Had the writer taken his analogy from 
any of the state governments, it would have extended much 
further, and, indeed, to every essential point ; but the con- 
clusion would have been wholly the reverse. 

In the next paragraph he again endeavors to support him- 
self by authority, " That this doctrine is applicable to the 
case of a contested power between the states and general 
government, wc have the authority, not only of reason and 
analogy, but of the distinguished statesman already referred 
to. Mr. Jefferson, at a late period of his life, after long ex- 
perience and mature deliberation, says, " With respect to 
43 



334 APPENDIX. 

our state and federal governments, I do not think their rela 
tions are well understood by foreigners. They suppose tht 
former subordinate to the latter ; this is not the case ; they 
are coordinate departments of one single and integral whole. 
But you may ask, if the two departments should claim the 
same subject of power, Avhere is the umpire to decide be- 
tween them. In cases of little urgency, or importance, the 
prudence of both parties will keep them aloof from the ques- 
tionable ground ; but if it can neither be avoided nor com- 
promised, a convention of the states must be called to ascribe 
the doubtful power to that department which they may think 
best." It is certainly not surprising that foreigners should 
not well understand the relation existing between oiu- state 
and federal governments ; but it is not a little surprising that 
so distinguished a statesman as Mr. Jefferson, after long ex- 
perience and mature deliberation, should not have under- 
stood them, or understanding, should not, when he sat down 
to correct the erroneous opinions of others, have been able 
to express his own in clear and intelligible language. It is 
true, there is some degree of difficulty in defining those rela- 
tions, which never before existed in the government of any 
nation. No words, no names had, therefore, been appro- 
priated to express those relations — none are to be found in 
any political writer, or in any treatise on government now 
extant. Words and names may be found, having some 
analogous signification ; but the analogy will always be dis- 
covered to be more or less remote : so that unless a Avriter 
on the subject is very careful to define the precise meaning 
he intends to express by them, he will often involve his 
meaning in obscurity, or lead others, if not himself, into 



APPENDIX. 335 

erroneous conclusions ; and such is evidently the case with 
Mr. Jefferson in this instance. He tells us the relation be- 
tween the state and federal governments, is that of coordi- 
nate departments of one integral whole — of one whole and 
complete government. As no qualifying or defining epithet 
is here introduced, the expression ought to be understood in 
its common or appropriate signification, which indeed are 
here the same. When we speak of coordinate powers gen- 
erally, it is understood that the cooperation of the powers, 
two or more, are necessary to produce a given effect. In 
perfect analogy to this, the word coordinate is applied to 
departments of government. If the cooperation of all the 
departments, acting separately, be necessary to the validity 
of their acts, their powers are said to be coordinate, and 
they are appropriately denominated coordinate departments. 
So fixed is the meaning of the expression, that this departure 
of Mr. Jefferson, if a different meaning was intended, is, I 
believe, the first to be found in the En£:lish lansfuage. 

Of these coordinate departments we have examples, as 
well in our own governments, as in that of Great Britam. 
Both in our general and state governments, the legislative 
branch is divided into tAvo departments at least, consisting 
of a senate and a house of representatives, Avho deliberate 
and act separately, but must both concur in the same act to 
give it validity. The British parliament, the legislative 
branch of that government, is divided into three depart- 
ments, or, as they are often denominated, the three estates 
of the realm, with coordinate powers. The king constitutes 
one department, the house of lords another, and the house 
of commons a third ; and, to the validity of all and every 



336 



APPENDIX. 



legislative act, each of these coordinate departments must 
concur. 

Certainly nothing can be found in any article, section, or 
expression of the constitution, to justify the apphcation of 
the term coordinate departments to the relations thereby 
established between the state and general governments, in 
its appropriate sense. Nor can it be made to consist with 
the declaration, that the constitution and laws of the United 
States shall be the supreme law of the land. The state 
governments, as such, are not by the constitution admitted 
to any voice, either positive or negative, in the adoption of 
those laws, or authorized finally to decide on their validity, 
either by themselves, or by their highest legal tribunals. I 
think ]Mr. Jefferson could not be supposed, in this instance, 
to have used the term in its appropriate sense. The origi- 
nal meaning of the epithet coordinate, taken singly, is, of 
equal, or the same order, rank, or degree ; as two counts, 
an order of nobility, are said to be of coordinate rank, with- 
out reference to power or cooperation. But, taken in this 
sense, of an equality of rank, to any practical purpose, be- 
tween the governments, it appears to me to be irreconcil- 
able with the decided supremacy of the constitution and 
laws of the general government. It does not support the 
general conclusion, which seems intended to 'be drawn ; nor 
does the instance put, serve to illustrate his position, nor to 
support Mr. Calhoun's doctrine of state rights. Mr. Jeffer- 
son gives an instance of what, he would have us believe, is 
an exercise of coordinate poAvers ; or, perhaps Ave should 
rather say, of the remedy to be obtained, through the means, 
or-in consequence of, the relation subsisting between the 



APPENDIX. 337 

State and general government, which he beUeves to be cor- 
rectly expresssed by calling them coordinate departments of 
one integral government. In this instance, I think he has 
been altogether unfortunate. He raises an objection by 
way of question : " But you will ask if the two departments 
should claim the same subject of power, Avhere is the umpire 
to decide ? " His answer is clearly intended to illustrate his 
proposition, by obviating the objection : " In cases of little 
urgency or importance, the prudence of both parties will 
keep them aloof from the debatable ground ; but if it can 
neither be avoided nor compromised, a convention of the 
states must be called, to ascribe the doubtful power to that 
department it shall think best." "What is here understood 
by the subject of power ? Is it person, or properly, or any 
matter or thing on which the power may be exercised ? or 
is it the purpose or object to be attained, or both ? Taken 
in either sense, if there may be a possible, there is certainly 
no necessary conflict, arising from the simultaneous exercise 
of the same power, by any or all the states and by congress. 
Congress has the power to lay and collect taxes through all 
the states. Each state has the same power, within the limits 
of its jurisdiction. The subjects to be assessed or taxed, 
are the same with both. In the case of a direct tax, persons 
and property ; of indirect taxes, as an excise, all excisable 
articles. The power has been often so exercised by both 
without a suspicion of coUision. Still, there may arise an 
inconvenience. Tiiese double exactions may, in their 
amount, press too hard on the contributors ; but public 
sentiment, under the joint influence of national and state 
interests, in consideration of the exigencies on each side, 



338 APPENDIX. 

and brought to bear alike on both parties, will soon find a 
remedy for the inconvenience. One or both Avill soon be 
induced to relax their exactions ; or one wholly to remit, 
and resort to other sources of revenue. We may adduce 
another case, in which the power of both governments may 
be brought, and frequently have been brought, to bear on 
the same subject, and for an object in many respects the 
same, in other respects different, but perfectly concordant. 
This is the case of internal improvements ; a power to pro- 
mote which has been, and still is, exercised by the general 
government, as a constitutional power, and with the appro- 
bation of a great majority of the people, and of the states. 
As internal improvements in general, such as canals and 
railroads, must, for the most part, be made within the limits 
of a state, the state power must be first brought to bear on 
the subject, as the state alone has the power and the right of 
taking private property, for public use, against the will of 
the owner, making him a proper compensation, without the 
e3ftrcise of Avhich no canal or raih'oad, or indeed any other 
road could be made, and carried through, if at all, without 
immense sacrifices. The state legislature will make the ne- 
cessary provision, as they find it for the interest of the state, 
and may direct the road or canal to be made for the use 
and at the expense of the state, or they may grant them to 
a company or companies, incorporated for that purpose, 
always subject to the laAvsand regulations of the state alone. 
Congress may now, if they view the object of sufficient na- 
tional importance, and to concern the general welfare, bring 
their power to bear on the subject, by advancing money to 
the state or company, on loan, or by a subscription for 



APPENDIX. 339 

shares in the company stock. This will be done, however, 
only on application to congress by the state, or by the com- 
pany. In the first case, that of taxation, each party exer- 
cises its power, independent and distinct from the other ; in 
the latter case, the state exercises its power, as principal, 
the general government as auxiliary. The object of the 
state is its own welfare, not excluding the general welfare. 
The object of congress is the general welfare, including that 
of the state. In none of these cases do Ave find the shadow 
of a coordinate power, or any collision of powers. There 
are, -indeed, some acts, generally prohibited, which a state 
may nevertheless perform, with the consent of congress. 
But this consent is a permissive act, of which the state may 
avail itself or not. It is not a concurrent act, as in case of 
coordinate powers or coordinate departments, in the appro- 
priate sense of the term ; nor, in the other sense of the ex- 
pression, does it make anything in favor of equal powers. 

We will however suppose such conflicting claim to have 
arisen between congress and the several state governments. 
What does Mr. Jefferson intend by the expression, " if it 
cannot be avoided or compromised ?" Shonld congress exer- 
cise the power, or one or more of the states, it becomes a 
question of constitutional right — a case arising under the 
constitution and laws of the United States, and can be con- 
stitutionally decided by the constitutional tribunal, the na- 
tional judiciary only. It is not a case for a compromise. 
Congress cannot alter the constitution, by surrendering or 
abridging any of their legitimate powers ; nor can the several 
state governments, of their own accord, surrender any right 
reserved to them in that sacred instrument, by the sovereign 



340 APPENDIX. 

people. Although there is but one mode, that just referred 
to, of setthng the present right of the parties, yet is there 
another mode provided for settling its exercise for the future, 
by an amendment to the constitution, which may assign the 
right to one party or the other, with such modifications and 
limitations as shall be deemed most conducive to the gene- 
ral welfare, or wholly prohibit its exercise. Such provision 
is fonnd in the fifth article of the constitution, " The con- 
gress, whenever two-thirds of both houses shall deem it ne- 
cessary, shall propose amendments to the constitution, or on 
the application of the legislatures of two-thirds of the several 
states, shall call a convention of the several states, for pro- 
posing amendments, which in either case shall be valid to 
all intents and purposes, as part of this constitution, when 
ratified by the legislatures of three-fourths of the several 
states, or by conventions in three-fourths thereof, as the one 
or the other mode of ratification may be proposed by the 
congress." 

INIr. Jefferson had undoubtedly a reference to such con- 
vention, a convention to be called, on the application of the 
legislatures of two-thirds of the several states ; for we cannot 
suppose that he contemplated, in this instance, any innova- 
tion of the constitution. Although this convention was to 
have the power only of proposing amendments, thereafter to 
be referred, for ratification, to the states, in one or other of 
the modes which congress might propose. On the whole, 
we need not hesitate to say, that he has not given a proper, 
or satisfactory answer to the objection he had raised, nor an 
answer tending in the least to strengthen or to illustrate his 
proposition. 



APPENDIX. 341 

I shall presently attempt to explain the relation actually 
existing between the state and general governments, and the 
provisions of the constitution intended to harmonize the 
general and particular interest. But, as I have hitherto, 
after stating the -writer's doctrine of state rights, confined 
myself principally to an examination of his authorities, on 
which he places so profound a reliance, and their reasons, 
fully expressing, as he tells us, his own, and which he has 
considered as unanswerable, I will return to a brief exami- 
nation of his own reasoning, the theory on which, according 
to him, the constitution rests. 

He begins with saying : "It has been said by one of the 
most sagacious men of antiquity, that the object of a consti- 
tution is to restrain the government, as that of the laws is to 
restrain individuals. The remark is correct. Nor is it less 
true, where the government is vested in a majority, than 
where it is in a single or a few individuals, a republic than a 
monarchy or aristocracy. No one can have a higher respect 
for the maxim, that the majority ought to govern, than I 
have, taken in its proper sense, subject to the restrictions 
imposed by the constitution, and confined to subjects in 
which every portion of the community have similar interest ; 
but it is a great error to suppose, as many do, that the right of 
a majority is a natural and not a conventional right, and there- 
fore absolute and unlimited. By nature every man has the 
right to govern himself; and government, Avhether founded 
on majorities or minorities, must derive their right from the 
assent, expressed or implied, of the governed, and be subject 
to such limitations as they may impose. Where the interests 
are the same, that is, where the same laws that will benefit 
43 



342 APPENDIX. 

one will benefit all, it is just and proper to place them under 
the control of the majority ; but where they are dissimilar, 
so that the law that may benefit one portion may be ruinous 
to another, it Avould be unjust and absurd to subject them to 
its will ; and such I conceive to be the theory on which our 
constitution rests." 

The theory exhibited in this passage, is, except in one or 
two instances, certainly correct, although, like most of all 
theories, it may be misapplied, as I think it has been in this 
case. The exception is, to the distinction taken for granted 
between natural and conventional rights, as though the for- 
mer were absolute and unlimited, the latter not. There is in 
fact, no such thing among human beings as an absolute and 
unlimited right, whether it be called natural or conventional. 
All rights are relative ; they are suggested by existing social 
relations, and are consummated, modified, and limited by 
convention ; that is, by the general, but for the most part 
tacit consent of the society. An isolated individual, ex- 
cluded from all possible relation to society, all knowledge of 
social relations, could have no right, nor even the conception 
of a right, in any proper sense of the term. He would have 
the power of uncontrolled action within the limits assigned 
by his nature, the power of doing what he pleased. This 
is not the exercise of a right, but of a faculty. The right of 
self-government, which it is said every man has from nature, 
is, therefore, not absolute and unlimited. It is by that very 
assent which is necessary to its existence, subjected to modi- 
fications and limitations. The actions of the individual are, 
in that respect, subject to prohibitions and even compulsion. 
It is the right and duty of the community, in any existing 



APPENDIX. 343 

State of things, to prohibit all those actions of the individual 
that have a direct tendency to injure the society, and to 
compel him to make those proportionate contributions that 
are found necessary to support and advance the general 
interest — the good of the whole. As all rights are social, 
so are they also conventional ; but they are not therefore 
opposed to natural rights. Nothing more can with pro- 
priety be meant by natural rights than that they are approved 
by the laws of nature. Nor can anything more be under- 
stood by the laws of nature, than those rules of human or 
social conduct, Avhich reason and experience have discovered 
to be generally beneficial to man, in the relations which he 
sustains agreeably to his constitution, as established by liis 
Creator. It is not true in any practical sense, that any rule 
of the law of nature is absolute and unlimited — that it is 
binding, under all circumstances, admitting no exceptions. 
That which the law of nature approves and enjoins in cer- 
tain circumstances and relations of society, it disapproves 
and prohibits in others. Were it not so, all social improve- 
ments must have been prohibited to mankind, by the laws of 
his natiu*e. 

The rule, that the majority shall govern, was considered 
by those who formed and by those Avho ratified the consti- 
tution, as a rule already established. It had the sanction of 
immemorial usage ; it was the established rule in every legis- 
lative, in every public body through the country. But they 
considered it to be capable of exceptions ; and they intro- 
duced exceptions, in all the cases where they thought a 
greater degree of unanimity ought to be required. Tiuis in 
the senate, it is made necessary that two-thirds of the mem- 



344 APPENDIX. 

bers present should give their assent to a treaty — and the 
same majority of two-thirds is necessary to conviction on 
impeachment. It is also provided, that a bill objected to by 
the president, shall not become a law unless it shall be re- 
passed by a majority of two-thirds of both houses. That 
the majority of two-thirds of both houses shall agree in 
making proposals of amendments of the constitution by con- 
gress. In the application to congress, it is required that two- 
thirds, and in the ratification of amendments three-fourths 
of the states should concur. These are the only exceptions 
expressed, and being expressed, every exception by infer- 
ence merely is excluded. The assertion,, that where the 
interests are dissimilar, so that the law that will benefit one 
portion, may be ruinous to another, it would be unjust and 
absurd to subject them to the will of a majority, is too 
unquahfied, and moreover implies an extreme case, which 
proves nothing. In every community, where the members 
are intelligent and enterprising, there must necessarily be 
a great diversity or dissimilarity of interests, arising from 
different pursuits, but all contributing more or less to the 
same end, and the sum total of which will constitute the 
general interest ; that is, the interest of the majority. If 
there be found an interest that contributes nothing to the 
general interest, it can demand no more than common pro- 
tection ; but if it be detrimental, if hostile to the general 
interest, it would be unjust and absm'd to encourage it ; nay, 
justice to the community would require that proper meas- 
ures should be adopted to discourage it, and put an end to 
its piu*suit. Indeed, in a well regulated society, very few, 
I believe I may venture to say none, will be found to engage 



APPENDIX. 345 

in, or certainly, long to pursue an interest that in its nature, 
or the nature of the means necessary to support it, is so 
inflexible that it cannot be brought to accord with the public 
interest, and even to promote it. 

The writer having, as he assumes, established by the au- 
thorities adduced, as well as by his own reasoning, the right 
of a state, by its legislature, to nullify or suspend within the 
hmits of its jurisdiction, any law of the general govern- 
ment, which they shall judge to be unconstitutional, or 
what he considers the same thing, to come in conflict with 
some great interest of the state, proceeds to give us the rea- 
son why such provision should be made in a government 
like ours, and its absolute necessity to the preservation of 
the union. "VVe are told a similar provision was found in 
all the most famous governments of antiquity, particularly 
of Sparta and of Rome ; that it was with them the great 
preservative principle of liberty, and to which is justly attri- 
buted their stability, their long endurance and prosperity ; 
that in modern times we have a conspicuous example in the 
British government, in the three coordinate departments of 
that government, constituted of the monarch, the aristocracy 
or lords, and the commons or representatives of the people. 
The different interests of these orders are of rank, and con- 
sist of powers, prerogative privileges and rights claimed by 
each, and often coming in conflict with each other. When 
these orders are deemed necessary to the conlhiuance of the 
government, each order must necessarily be vested with a 
power to protect its o\yn rights and privileges, and this can 
be done in no other way than by vesting them with coordi- 
nate powers, rendering the concurrence of all and each, 



346 



APPENDIX. 



necessary to the validity of every law or general measure of 
the government ; so that any one of the orders can, by a 
simple non-concurrence, protect itself against any law or 
measure, which may be supposed injuriously to affect its 
interests. " Happy for us," he says, " we have no artificial 
and separate classes of society. We have wisely exploded 
all such distinctions, but we are not on that account exempt 
from all contrariety of interests, as the present distracted 
and dangerous situation of our country, unfortunately, but 
too clearly proves. With us they are almost exclusively 
geographical, resulting mainly from difference of climate, 
soil industry and productions, but are not therefore less 
necessary to be protected by an adequate constitutional pro- 
vision, than where the distinct interests rest in difTerent 
classes. The necessity is, in truth, greater, as such separate 
and dissimilar geogi'aphical interests are more liable to 
come into conflict, and are more dangerous, in that state 
than those of any other description." One prominent error 
of the writer, and which affects all his reasonmgs on the 
subject, is, that he considers all different and dissimilar inter- 
ests as coming into conflict or opposition with each other,, 
while I believe, that under our institutions, no two or more 
interests, the pursuit of which can lawfully be permitted, 
considered in a political, civil or moral view, are ever neces- 
sarily opposed, or have any necessary tendency to opposi- 
tion. On the contrary, when rightly understood, (and men, 
unless under some high excitement or temporary delusion, 
will readily understand what is for their benefit,) it may, with 
the utmost confidence, be asserted that there is a general 
harmony of all such interests. As for instance, between 



APPENDIX. 347 

the agriculturist and the manufacturer. The agricuUurist, 
^vhelher his products consist of raw material, as cotton, flax, 
hemp or wool, or of articles of subsistence, as beef, pork, 
butter, cheese and bread stuffs, is deeply interested in the 
success and prosperity of the manufacturer, the greater his 
demand on the agriculturist for the materials of his manu- 
facture and the means of subsistence, a demand for those 
articles which must mostly perish on hand, or cease to be 
produced ; and the more ready, cheap and abundant will be 
his supply of the articles and implements necessary to any 
advantageous pursuit of his business, or that contribute to 
the necessities, comforts and conveniencies of life. Nor is 
the manufacturer less deeply interested in the success of the 
agriculturist, Avhich secures to him a more cheap and abun- 
dant supply of the necessary means of subsistence, and the 
materials of his manufacture, while the success of both 
unite in the public prosperity. Nor can it affect the real 
mutuality of the interests, whether they reside in the same 
or in different geographical divisions of the country, be- 
tween which there is a free commercial intercourse. It is 
thus that the cotton manufacturers of the north, including all 
the manufacturers and agriculturists of that region, have a 
steady interest in the success of the cotton planters of the 
south, from whom alone they can expect a supply of cot- 
ton, the important material in their manufacture, the duty 
of three cents per pound on foreign cotton imported, amount- 
ing to a prohibition. And surely the cotton planter is equally 
interested in extending his market, by furnishing a steady 
supply to the increasing demand of the manufacturers. In- 
deed, it is nothing short of a paradox to assert, that the dif- 



348 



APPENDIX. 



ference of climate, soil, industry and productions in the 
different states, or geographical divisions of the country, 
should create different and dissimilar interests in the sense 
of the Avriter. As to the proof of a contrariety of interests 
to be found, as he tells us, in the present distracted and 
dangerous state of the country, it is a proof of a contrariety 
of opinion, which on the part the writer has espoused, ap- 
pear to me, as they do to a majority of two-thirds, if not 
three-fourths of the states, as baseless as are his opinions 
which have been examined on the great constitutional 
question. 

To proceed with his system of self-protection, to be vested 
in the several states, and his reasons why there ought to 
be such a provision : He tells us that a constitutional pro- 
vision of the right of self-protection, in the case of separate 
and dissimilar geographical interests, is more necessary than 
in the case of difference of ranks, as such interests, accord- 
ing to his assertion, are more liable to come into conflict, 
and are more dangerous in that state, than those of any 
other description. We are told, " So numerous and diver- 
sified are the interests of our country, that they could not 
be represented in a single government, organized so as to 
give each great and leading interest a separate and distinct 
voice, as in the governments to which I have referred. A 
plan was then adopted, better suited to our situation, but 
perfectly novel in its character. The powers of govern- 
ment were divided, not as heretofore, in reference to classes, 
but geogi'aphically. One general government was formed 
for the whole, to which Avas delegated all the powers, sup- 
posed to be necessary to regulate the interests common to 



APPENDIX. 349 

all the states, leaving others subject to the separate control 
of the stales, being, from their local and peculiar character, 
such that they could not be subject to the will of the ■whole 
Union, without the certain hazard of injustice and oppres- 
sion. It was thiTS that the interests of the whole were sub- 
jected, as they ought to be, to the will of the whole, while 
the peculiar and local interests were left under the care of 
the states separately, to whose custody only they could be 
safely confided. This distribution, to which all the states are 
parties, constitutes the peculiar character and excellence of 
our pohtical system ; it is truly and emphatically American, 
without example or par allele The intention of the ■writer, in 
this paragraph, is to show, that the framers of the federal 
constitution had, at the time, a clear view of his separate, 
dissimilar, and unavoidable conflicting interests, arising from 
the geographical causes he has assigned, and the necessity 
of providing for each geographical division, or, Avhich is 
the same thing, each state, the separate interests of Avhich 
might be, as it was then supposed, injuriously affected by 
any law of the general government, the power and right of 
self-protection. He has not asserted, though his manner of 
expression seems to imply it, that the division was made 
with a view to the present government. It existed in the 
several colonies, long before they became independent states, 
before any conception of a national union. Nor does he 
assert, nor will ho venture to assert, that any such express 
provision is to be found in the constitution. But that it is 
to be inferred from the supposed views and intention of the 
framers, and from what he considers the necessity of the 
ease. And where are we to find the proof of this inten- 
44 



350 APPENDIX. 

lion ? Not a hint is to be found in any expression of the 
constitution ; not a hint in the journals and debates of ihe 
general convention, nor in the debates of the several state 
conventions, who ratified the constitution, as far as they have 
been published ; not a hint in any of the amendments that 
have since been adopted. On the contrary, it was the gene- 
ral complaint of the opponents, that the constitution left the 
several states powerless ; it left them neither the power nor 
the right of protecting themselves against any stretch of 
power by the general government. It was not only said 
that the states were degraded from their sovereignty, but, in 
a strain of exaggeration, they were declared to be reduced to 
the humble grade of corporations, existing at the pleasure of 
the general government, and soon to be swallowed up in the 
vortex of its power ; and although these complaints and the 
objections they contained were fully answered on the other 
side, yet Avas there not an attempt to obviate them by a hint 
of a provision for this self-protecting power, either express 
or implied, in the general constitution, or in the modified 
constitution of the several states. Of all this Mr. Calhoun 
could not have been ignorant, although he might not have 
called it to mind while writing. With respect to some further 
observations which he has made, on the division of powers, 
I shall have further occasion to speak. I think we have 
given sufficient specimens of his reason for the introduction 
of this system of self-protection. Let us now attend to the 
system itself; the manner in which it is to be exercised, for 
the attainment of its object, and its final consequences to the 
government. It will be recollected that the right of self- 
protection is supposed to be derived to each state from its 



APPENDIX. 351 

independent sovereignty, which it is asserted still remained, 
and is reserved to the several states, or at least a portion of 
that sovereignty sufficient for the purpose, notwithstanding 
the delegation to the general government of all those powers, 
in which national sovereignty consists, and the prohibition 
to the several states of the exercise not only of those powers, 
but of such other powers of domestic, or, as it may be pro- 
perly denominated, municipal sovereignty, as, it was be- 
lieved, might, under the influence of sectional prejudices, or 
an imdue preponderance of sectional interests, prove detri- 
mental to the interests of the whole, interrupt the national 
harmony, and the reciprocal enjoyment of national privi- 
leges among the citizens of the several states, in their inter- 
course with each other. 

The consequence of this supposed reservation of power is, 
that, as all sovereign and independent states are equal among 
themselves, in power and rights, each state must have a 
power coordinate with that of the general government, and 
with the several co-states. These powers, however, are not as 
in the several departments of the British government, to be 
coordinate in their exercise. No state is permitted a voice 
in the passage of an act by the general government. When 
the act has been passed, and has become the supreme law 
of the land, then, and hot till then, the protective power 
may be interposed. If any one of the states shall judge 
the law to be injurious to its separate interests, or a danger- 
ous infraction of the national compact, which, according to 
the doctrine laid down, as the state is to be its own sove- 
reign judge, or, which will always be the same thing, it has 
the right of interposing its veto, to suspend the operation, 



352 



APPENDIX. 



or, in more modern phrase, to nullify the obnoxious law 
■within the limits of its jurisdiction, the limits of the state ; so 
that the state may be said to have a recusant rather than a 
concurrent voice ; and this act of the state is a constitu- 
tional, and therefore a peaceable act — an appeal to the co- 
states, instead of an appeal to force, the usual resort of sove- 
reigns. He says, " The states themselves may be appealed 
to, three fourths of which, in fact, form a power, whose de- 
crees are the constitution itself, and whose voice can silence 
all discontent. The utmost extent then is, that a state acting 
in its sovereign capacity, as one of the parties to the consti- 
tutional compact, may compel the government, created by 
that compact, to submit a question, touching its infraction, 
to the parlies who created it." 

We are not here told, by what authority, or in what man- 
ner the general government are to submit the question to the 
parlies, that is to the states, for a decision ; but as to the 
manner we must suppose from several expressions, and from 
the approbation with which he has introduced the authority 
of Mr. Jefferson on a similar subject, it is to be by caUing a 
general convention of the states. But no single state, with 
all its sovereignty, has any right, any power, to compel con- 
gress to assume a power not delegated by the constitution. 
That instrument has conferred on congress no power to sub- 
mit any question touching its mfractions, either to a conven- 
tion or to the states themselves. So far from this, it has, as 
has been already shown, very explicitly referred all questions 
of this kind to the constituted tribunal, the judiciary of the 
United States. If any power, delegated or reserved, shall 
be found to be oppressive or unequal in its operation, or 



APPENDIX. 353 

liable to abuse, a remedy is provided by an amendment of 
the constitution, limiting, modifying, or wholly expunging 
such power. But such amendment must be proposed and 
ratified in the mode and manner prescribed by the coiLstitu- 
lion, and no other. For the sovereign people have pre- 
scribed modes and limitations to the exercise of their own 
power, as well as that of their rulers ; the manner in which, 
by whom, and for what purposes, it shall be called into 
action. Whether they are to exercise it by themselves, by 
their representatives in convention, or in their legislative as- 
semblies. The mode of exercising the power of amending 
the constitution, and the authorities of the several acting par- 
ties, from the inception to the final ratification of the amend- 
ments proposed, are definitively pointed out and limited ; 
particularly the power of the general convention, the convo- 
cation of which is authorized alone by the fifth article of the 
constitution, as already recited, is limited to the sole object 
of proposing amendments. And surely the writer will not 
venture to assert, that there is in this article, or in any other 
article of that instrument, any provision or hint of a provision 
for the calling of a general convention for any other purpose 
or object. Will it then be contended that necessity makes a 
law for itself ? That the state power exists from necessity, 
that hence from necessity is derived the state right of self- 
protection — the right of suspending an obnoxious law of the 
general government, in the nature of an appeal to the states, 
the original parties to the constitution, that the same neces- 
sity will legitimate the calling of a general convention to de- 
cide on the appeal, and authorize the convention to make 
the decision and furnish the means of compeUing the parties, 



354 



APPENDIX. 



in which the general government is inckided to abide the 
decision ? Certainly not, by Mr. Calhoun. He would in- 
stantly perceive that such a doctrine wovild insure a speedy 
dissolution of all civil institutions ; although he does not per- 
ceive that the doctrines which he is advocating would 
equally insure a dissolution of the union. 

We will, however, suppose all difficulties surmounted, 
and a convention of the states meet to decide the appeal, 
could an impartial decision be expected ? Public opinion 
continuing the same, the same majority would be found in 
the convention in support of the law, which had prevailed, 
in its passage by congress — and the final decree, instead of 
being a dove to silence discontent, would serve only to 
cherish discord, and administer food to party discontent. 
And yet we are very gravely and zealously assured, that 
such are the only means that have been, or can be devised 
for the preservation of the union of the states. On a candid 
review of the whole subject, it is extremely clear that, if the 
power and the right contended for, remained on the adoption 
of the constitution, and was reserved to the several states, it 
was something that wholly escaped the discernment of those 
who framed, or those who ratified that instrument, as well 
as those who prepared, and those who ratified the subsequent 
amendments — and it is clear that the doctrine of state rights 
so zealously advocated by Mr. Calhoun, has no foundation 
in the constitution, in reason or common sense. 

Before I proceed to examine Mr. Calhoun's opinion on the 
constitutionality and the eflects of the tariff, in which I shall 
be very brief, I will endeavor to define, or rather to delineate 
the relations as they exist between the general and the state 



APPENDIX. 355 

governments. There is, as before observed, a want of ap- 
propriate terms, that renders it less easy to express, than to 
conceive those relations. In developing these relations we 
shall make the constitution our guide, but to a correct un- 
derstanding of all the provisions of that instrument, and their 
several bearmgs, it will be necessary to take a concise view 
of the constitution that preceded it, the old confederation, its 
prominent defects, the causes of faihu-e, the evils intended to 
be remedied and the great end to be attained. On the de- 
claration of independence in July, 1776, the colonies, now 
states, assumed, severally, the powers and character of inde- 
pendent sovereignties, independent states. They had, from 
the commencement of the revolutionary contest, acted in 
concert in the common cause, under the direction of a con- 
gress, consisting of delegates from the several colonies, whose 
authority was merely that of influence, supported by the 
necessity of united efforts against their common and pow- 
erful enemy. In this situation it was clearly perceived by 
all, that in order to their success in the struggle, and to place 
them on a respectable, footing with the nations of the earth, 
among whom they were taking a station, a closer and lasting 
union must be formed, and a general government estab- 
lished, Avith sufficient poAver and authority to act, and to 
transact the common concerns of the whole as a nation. 
Accordingly the old confederation was formed, approved 
and ratified by the several states, acting respectively in 
their characters of independent sovereigns. The first article 
merely declares the style of the confederacy to be; " The 
United States of America." The second article declares 
that " each state retains its sovereignty, freedom and inde- 



356 . APPENDIX. 

pendence, and every power, jurisdiction and right which is 
not by this confederation expressly delegated to the United 
States in congress assembled." Article 3d. " The several 
states hereby enter into a firm league of friendship with each 
other for their common defence, the security of their liberties, 
and their mutual and general welfare." In determining 
questions in congress, as aU independent sovereigns are equal 
in dignity, however unequal in other respects, each state was 
to have one vote. For the more convenient management of 
the general afFans of the United States, delegates were to be 
annually appointed in such manner as the legislature of each 
state should direct, to meet in congress on a certain day in 
every year. The power stipulated in this league to be con- 
ferred on congress, were, in many respects, the same as 
were afterwards delegated to the general government by the 
constitution of the United States, and gave the confederation, 
on paper, the semblance of a government ; withholding, 
however, those powers, without which all other powers are 
merely nominal ; and the grant of these essential powers 
was withheld, because they could not consist with the inde- 
pendent sovereignty of the several states. Congress was not 
provided with a judiciary or an executive. All their acts, as 
well as the articles of confederation, were subject to the in- 
terpretation of the legislatures, and judicial tribunals of thir- 
teen independent states ; and for carrying their measures 
into effect, they were dependent on the good plcasm*e of the 
legislatures, and executives of these same sovereign states. 
They had the power of making treaties, but not the power 
of fulfilhng any stipulations on tlieir part. Tliey had power 
of declaring war, but had the command of no resources to 



APPENDIX. 357 

maintain a war. They had no power to raise a revenue, the 
power of laying or collecting taxes of any kind, direct or in- 
direct. Their power went no farther than to ascertain the 
amount necessary to be raised for the public service, and ap- 
portion it among the several states according to a rule pre- 
scribed, with a request that each should raise its respective 
quota, which each, as an independent sovereignty, might 
choose or refuse at pleasure ; and which was in fact often 
refused or neglected with impunity. It is true, congress 
Avere empowered to borrow money, and emit bills on the 
credit of the United States, but without the command of 
funds to pay the one or redeem the other. They issued 
their acts which they denominated ordinances ; they never 
ventured to give them the name of laws ; for what property 
of a law has an act that all and every of the parties may 
obey or not, at its sovereign will and pleasure. It is true, 
that the pressure of the war and the patriotic zeal of the citi- 
zens in a common cause, in which their all — life, liberty, 
and property was at stake, supplied, in some degree, the 
Avant of power in congress. In addition to this, a fortunate 
conciurrence of circumstances in the political world, enabled 
congress to engage in the cause of the country some of the 
most powerful nations of Europe, to triumph in the event of 
the contest, and to obtain from Great Britain a full acknow- 
ledgment of the sovereignty and independence of the United 
States. But no sooner was the war ended, and peace re- 
stored to the country, than the evils of this imbecile system 
of confederation were fully developed, to the astonishment 
of many and the regret of all. The credit of the United 
States was sunk lo the lowest ebb, and Avilh it that of the in- 
45 



358 APPENDIX. 

dividual states, involving in the same rnin all credit, all con- 
fidence, both public and private. The scenes of perplexity 
and distress that followed throughout the country, pressing 
on the very verge of anarchy, are remembered by many still 
surviving, and are well known to all conversant in the his- 
tory of those times. 

The experience acquired from observation of the failure 
of the system of federal union, the causes of the failiu-e, and 
the consequences that folloAved, disclosed the necessity and 
suggested the plan of an energetic national government. 
The plan thus suggested was afterwards matured and suc- 
cessfully adopted in forming the constitution of the United 
States. At the time of forming the constitution, each of the 
states was possessed of the full and complete sovereignty, 
embracing both the national and the domestic, or, Avith 
more propriety, the municipal sovereignty, within its limits. 
It was deemed desirable or indispensable, that the separate 
states should still retain and exercise, under their respective 
constitutions, the municipal or local sovereignty, subject to 
no interference or control of the general government, except 
in some few instances, in which such exercise might endan- 
ger a conflict Avith the general interest. And it was deemed 
equally indispensable to any practical national union under 
a general government, that all the powers which constitute 
mdependent national sovereignty, should be transferred from 
the several states and vested in such government ; without 
which it must prove equally inefficient Avith the nominal 
government under the confederation. There is no reserva- 
tion to the states of that sovereignty and independence, nor 
is it expressly denied to them ; indeed, the expression 



APPENDIX. 359 

" sovereignty and independence," or even the word " sove- 
reign," or " sovereignty," is not to be found in that instru- 
ment. The term seems to have been purposely avoided ; 
perhaps because it was thought iK)t to be apphcable, under 
our institutions, to the internal relations of either the general 
or state governments, in the absolute sense in which it is used 
by English statesmen and jurists. They define it to be an 
absolute, uncontrolled, and uncontrollable, arbitrary, aixl de- 
spotic po^ver, which must necessarily exist in every govern- 
ment, wherever it may be lodged. And in that government 
they placed it in their parliament, tlie three estates of the 
realm. This, however, is not true of that government in 
practice, whatever may be the theory. It is there, by the 
forms of the constitution, placed under the constant and 
powerful control of public sentiment. With us it is ex- 
pressly limited by our constitution, Avhich subjects it not 
only to the tribunal of public sentiment, but to the legal 
control of an independent judicial tribunal, wliose interpre- 
tations of the constitution, and their decisions on the consti- 
tutionality of the laws are final and conclusive. It was, 
therefore, probably deemed safer to enumerate the powers 
delegated to the general government, and the powers with- 
held or limited on the one handy and the powers limited, 
modified, or proliibited to the several states, on the other, 
without expressing the result in either case, by a term or 
terms which might lead to a doubtful or erroneous construc- 
tion. 

The United States, as a nation, are sovereign and inde- 
pendent. This sovereignty is, by the constitution, vested in 
the general government. In tlieir relations with foreign 



360 APPENDIX. 

powers, in their intercourse with independent nations, the 
sovereignty is absohite and independent, in the sense of the 
laAv of nations, which places all sovereign states on the same 
footing ; but in its relations to the people, and to the local or 
state governments, it is a limited sovereignty ; and although 
its laws are declared to be supreme, they are supreme within 
the limits only prescribed by the constitution. In this view 
of the subject, the several states may be said to be sove- 
reign, but not independent. Each is still in possession of 
sovereign power, but it is a hmited sovereignty, adapted to 
the superior sovereignty of the national government. The 
sovereignty of the several states is local, confined in each 
within its local limits. It is wholly municipal in its charac- 
ter, and embraces those local concerns and interests only, 
which were considered as not having a national character, 
or not to affect the general interest of all, as forming a na- 
tional whole. Thus, while the general government is vested 
with supreme authority, in all matters that involve the gene- 
ral welfare of the Union, considered in a national view, the 
state governments, within the limits of their respective juris- 
diction, retain as sovereign all those powers, which, in their 
due administration, must endear the social state to mankind. 
To them, among their own citizens respectively, it belongs 
to regulate the mode of acquiring, and to secure the acqui- 
sition of property ; to cherish and protect all the social rela- 
tions ; to provide for an equal administration of justice ; to 
promote the means of education, and facilitate the diflusion 
of useful knowledge through all classes ; to animadvert upon 
morals, and punish those crimes which attack private pro- 
perty, violate personal security, or in any manner disturb 



APPENDIX. 361 

• 

the peace of the community. Each of the several states 
may be said to be independent, in the exercise of the muni- 
cipal sovereignty, in one sense, that no power external to 
the state has a right of interference, or to control it while 
exercised within the limits as prescribed ; but not in the 
usual and appropriate sense of sovereign and independent ; 
because, among other things, certain limits are set to that 
sovereignty, as it relates to the general government, which 
the state governments are forbidden to exceed, and of which 
the constitution of the United States has made the former 
government the sole guardian, and the sole judge of the 
excess. What is conclusive on this subject, if anything can 
be so, is, that the right of final decision, in all cases arising 
under the constitution and laws of the United States, and 
treaties made under its authority, in all cases to Avhich the 
United States shall be a party, either with a state or its citi- 
zens, in all controversies between two or more states, or in 
Avhich a state shall be a party, is vested in the general gov- 
ernment, through the proper department, the judiciary of the 
United States. Nor is there a single instance, in Avhich a 
state is, by the constitution, permitted to judge for itself, in 
any question relating to the powers or acts of the general 
government — a right necessarily incident to the sovereignty 
and independence of a stale, and without which no such in- 

f 

dependence can exist. As has before been observed, the 
constitution and laws of the United States are declared to 
be the supreme law of the land, and binding on all the 
judges in every state, notwithstanding anything to the con- 
trary in the constitution or laws of any state ; and all the 
functionaries, all the officers of the several states, Icgisla- 



362 APPENDIX. 

• 

tive, executive, and judicial, are required to be bound by 
solemn oath to support the constitution of the United States, 
that is, to support the government in all its constitutional 
acts, in all its departments. Each and every state, with 
their several governments, is therefore bound by the same 
solemn obligation. A state or a government without func- 
tionaries, by whom it may be administered, is a mere ab- 
stract entity, incapable of energy, incapable of action. It is 
a self-evident truth, that the obligation of the state or govern- 
ment is identical with that of its functionaries. The several 
states are therefore bound by all the constitutional acts of 
the general government, but that government is not bound 
by the laws of any state, or of every state, should each with 
all solemnity enact the same thing. I am here speaking of 
the ordinary powers of legislation, which belong to the state 
governments, not of the extraordinary powers of legislation, 
which belong to the sovereign people only ; and which is 
employed solely in enacting, altering, or amending the con- 
stitution of the state governments, and has no bearing on 
the present subject. I say, the general government is not 
bound by a state law ; they are indeed bound to respect the 
laws of the several states, not transcending the bounds of 
their municipal sovereignty, as it respects the constitution of 
the United States, so far as not to interpose any control ; 
but this is totally different from an obligation to obey the 
law. The general government is bound, on application of 
the legislature, or the executive of a state, as the case may 
be, to assist in suppressing any insurrection against its au- 
thority ; but this is the obligation of an auxiliary, which sup- 
poses no superiority on the one side or the other. Somewhat 



APPEiNDlX. 



363 



different is the case, where a state cannot act without the 
permission of the general government. It indicates a supe- 
riority in tliat government. It is true the permission is not 
compulsory on the state, but it is compulsory on the state 
not to act without the permission. 

On the closest scrutiny we may then repeat the assertion, 
that the power of the national government, constitutionally 
administered, has, whenever it comes in contact with the 
acts of the state governments, a declared superiority. We 
nowhere find those relations of equality which Mr. Jefferson 
has in efl'ect asserted in denominating them coordinate de- 
partments. It is true, the general and the state governments 
were intended to include the whole government of the coun- 
try, and to each Avas assigned its part. The former consti- 
tuted the national government, vested with the national 
sovereignty, and charged with the national interest of the 
whole. The latter, the state governments, were local, vested 
severally with the municipal sovereignty within their respec- 
tive limits, and all united under one national government. 
The state governments were, as we have seen, placed in due 
subordination to the general government in all those matters 
and those only which were deemed to be of general concern, 
and to embrace the interest of the whole as one nation. 
This was not left to the arbitrary discretion of either. The 
powers and rights of each are hmited and adjusted by the 
constitution itself. Without all this the general government 
would certainly have a strong resemblance to a joint com- 
mission, to which it is compared by Mr. Calhoun ; but a 
conmiission of a peculiar kind, in which any of the parties 
should have a right reserved to disavow any act of the com- 



364 APPENDIX. 

missioners, and withdraw himself, or to dissolve the com- 
pact at his pleasure. There is, however, one provision in 
the constitution, on which Mr. Jefferson seems to have 
mainly relied, as the foundation of his two coordinate de- 
partments, although according to his construction, if it proves 
anything, it proves the superiority of one of the depart- 
ments — that consisting of the several states — but it is very 
clear that it proves nothing to the purpose ; for the question 
is, not what may be at some future period, but what at pre- 
sent are the existing relations between his departments, not 
what the constitution may be, but what it is. Mr. Jefferson 
seems to have caught his idea on the subject from the recol- 
lection of a general convention, to be called, without any 
distinct recollection of the purpose for which alone its call is 
authorized. It is not, as before observed, to decide what 
are the constitutional powers of the general government, or 
the right of the several states as subsisting at the time ; but 
to recommend what they should be at a future period by 
proposing amendments of the constitution to this effect. If 
any amendments are so proposed, they are to be referred 
for ratification to the sovereign people, acting either by their 
representatives in convention, to be called in the several 
states, or by their representatives in th^ several state legisla- 
tures, and in the latter case the representatives act not in the 
character of ordinary legislators, but in the character, and 
exercising the extraordinary powers of the people, which 
they have reserved to themselves over the constitution, from 
whom it originated. And if the amendments proposed are 
finally ratified, the ratification is the voice of the sovereign 
people of each state, in concurrence with the voice of the 



APPENDIX. 365 

people of all the states, or at least of three-fourths of all the 
states. When the people have thus ratified, or shall have 
rejected the proposed amendments, the power is executed, 
and becomes dormant. No portion of it remains to the 
several states, or any of them. All that remains is the right 
of again calling it into exercise in the mode and in the man- 
ner prescribed. It is evident, therefore, that this reservation 
of power to the people, not to the states or state govern- 
ments, as such, is wholly misapplied by Mr. Jefferson as 
well as by J\Ir. CaDioun and his party in favor of state 
rights. 

There are too objections, deemed by the advocates for 
state sovereignty and mdependence, which ought at least to 
be briefly noticed. 1st, That to give the general govern- 
ment, through whatever department, the sole right to judge 
of its own powers, is to reduce the several states from inde- 
pendent governments to the subordinate grade of corpora- 
tions, existing at the will and pleasure only of that govern- 
ment. 2d, That to make the powers of the general govern- 
ment, for any purposes or within any limits, superior to the 
state governments, is to make the creature greater than the 
creator. As to the first objection, it has often either been 
tlu'own out ad captandum vidgns, or has been taken up and 
maintained without due consideration. A corporation is the 
mere creature of the superior government, from which it de- 
rives its existence, and is dependent for its powers, and for 
its continuance, on the laws of the goveriunent. Not so the 
state governments, even admitting all the powers vindicated 
for tlie general government. In no sense do they derive 

their existence or their powers from that government ; nor 
46 



366 APPENDIX. 

are they dependent on its laws for their continuance, or the 
exercise of their rightful powers within the limits of then* 
several jurisdictions. The general government and the seve- 
ral state governments derive - their existence and all their 
powers from the same legitimate source of power, the sove- 
reign people. The government of each state derives its 
powers from the act of the people, within its local limits, and 
the general government from the concurrent act of the peo- 
ple of all the states ; and the people still retain, in the same 
sovereign capacity, the right to change and limit the powers 
of both or either, and so to adjust them, as shall be deemed 
most conducive to the general good. One thing which gives 
the greatest security to the state governments, and to state 
rights is, that the members of congress are elected, in a cer- 
tain ratio, by the people of each state from their own citi- 
zens, and for short periods, so that they are held constantly 
accountable for their public conduct to their constituents. 
As to the second objection, it is held as a general truth, that 
the creature cannot be made greater than the creator. In 
what sense does this apply to government ? The sovereign 
people create the government, for the very end that it should 
rule over them : the people mstitutmg the government. But 
is the sovereignty of the people natural or conventional ? It 
is so far natural, as it has its origin m the social nature of 
man. But in the order of nature individuals are first ; they 
are the constituent parts of society. Being ever so many 
persons together, from diiferent parts of the world, so long 
as each individual or each family, shall continue to live sepa- 
rately and independent of each other, they cannot be said to 
constitute a people : that they may constitute a people, it is 



APPENDIX. 367 

necessary they should become associated, either by express 
or by tacit consent. Then, and not till then, they become a 
people, and capable of acting as such. But in that state 
they cannot act without some point of union, without some 
power instituted or assumed to concentrate their actions — 
otherwise, there will be but a chaos of individual actions, 
discordant as the individual wills ; in this way only can the 
people be brought to act efficiently. 

It has been shown, that society is the necessary, and even 
the natural state of man ; and that civil government is neces- 
sary to man in society. In that sense civil government is a 
dictate of nature, and is agreeable to the laws of nature ; 
but the institution is left to man in his social state. In that 
state every people have the sole right of choosing and form- 
ing their own institutions of government, of varying, chang- 
ing and adopting them to their different situations, in the 
progress of social and civil improvements. How these insti- 
tutions have been introduced by tacit consent in the early 
stages of society, and become binding by the force of cus- 
tom, need not be here repeated. We will advance at once 
to that state of social and civil improvements, in which the 
people have entered into an express civil compact, or ■writ- 
ten constitution, forming and organizing a government for 
themselves, instituting, hmiting and directing its necessary 
powers to the end intended ; providing for the selection and 
appointment of the functionaries to administer those powers 
in the several departments, and the manner in which they 
shall be held accountable for their conduct in the adminis- 
tration. In thus forming and establishing their government, 
the people act in their sovereign capacity, and in that capa- 



368 APFEiNDIX. 

city are the source of all power in government. But they 
have provided, that this their sovereign power shall there- 
after remain dormant, until again called into action upon 
the same subject, the constitution, and that only on the oc- 
casions, and in the manner which they have prescribed. In 
the mean time it is, as it were, non-existent. The govern- 
ment thus instituted and administered, agreeably to the pro- 
visions of the constitution, is made supreme over the people, 
who now no longer act as such, but as individuals, sub- 
ordinate to the government by their own consent. There 
is, therefore, no absurdity in the case, that the people should, 
one and all, become subject in their individual capacity to the 
government, which they have instituted or created in their 
united and aggregate capacity. Indeed, if we reject this 
reasoning, we must necessarily resort to the doctrine of the 
divine right of sovereignty ; nothing short of this can establish 
the authority of any government. This reasoning applies as 
well to the several states under the government as to people 
under a government of a more simple form; for let the 
several states be considered as parties to the compact, form- 
ing the constitution of the general government, each state 
was undeniably made a party by the act of the sovereign 
people of the state, the government of which is the crea- 
ture of that people, and the act of the government or state, 
if so empowered to act, is in effect the act of the people 
and binding only as such. If, then, the people of the several 
states have, themselves, or through the agency of then: sev- 
eral governments, by concurrent act created another govern- 
ment, that government is the creature of the whole, as the 
government of each state is the creature of its separate and 



APPENDIX. 369 

distinct people ; and each people have the power over the 
creature they have made, and the right to place it in such 
relation to the creature, made by the whole as they may 
please, and in such degree of subordination, and for such 
purposes as they shall deem most conducive to their inter- 
ests, and the interests of all the parties. Surely this is not 
to make the creature greater than the Creator, but directly the 
contrary. I Avill add, that the subordination of the several 
states to the national government is only quoad hoc, within 
the limits of the powers given to that government, and to the 
end for which those powers were given. If I could find 
another word in the language less offensive to state pride 
than the word subordinate, thus qualified, to express the re- 
lation in which the state governments stand as it respects 
the general government, I should readily have adopted it ; 
but I can find none that will so correctly express that rela- 
tion as it is determined by the constitution ; and I consider it 
as a matter of great consequence to form a correct opinion 
upon the subject. 

In respect to the constitutional question, Mr. Calhoun 
says, " In order to understand more fully the difficulty of 
adjusting this unhappy contest on any other ground, it may 
not be improper to present a general view of the constitu- 
tional objections, that it may be clearly seen, how hopeless 
it is to expect that it can be yielded by those who have em- 
braced it. They bcheve that all the powers vested by the 
constitution in congress, are not only restricted by the limi- 
tation imposed, but also by the nature and object of the 
powers themselves. Thus, though the power to impose 
duties and imposts be granted in general terms without any 



370 APPENDIX. 

Other express limitation, but that they shall be equal, and no 
preference shall be given (by any regulation of commerce 
or revenue) to the ports of one state over those of another, 
yet as being a portion of the taxing power, given with the 
view of raising revenue, it is, from its nature, restricted to 
that object, as much so, as if the constitution had expressly 
so Hmited it, and that to use it to effect any other purpose, 
not specified in the constitution, is an infraction of the instru- 
ment, in its most dangerous form, an infraction by perver- 
sion, more easily made and more difficult to resist than any 
other. The same view is believed to be applicable to the 
power of regulating commerce as well as all the other 
powers." This does not differ materially from the rule of 
construction adopted by the supreme court, as laid down in 
Sergeant's Constitutional Law : " In the constitution of the 
United States, the powers of government are restricted to 
certain objects, and the incidental powers restricted to such 
as are necessary, (that is, expedient) to the powers ex- 
pressed." This is certainly correct as a general rule ; the 
principal difficulty is found in making a correct application 
of the rule in specific cases. 

In the present case it becomes an important question, what 
is the nature and object of the taxing power, and the power 
to regulate commerce ? What was intended to be compre- 
hended in the terms and expressions used, in the grant of 
those powers, by the framers of the constitution ? For it 
will, and must be conceded, that these articles ought now to 
be understood as they were then understood, and construed, 
to embrace the objects then supposed and intended to be 
embraced in them as they are expressed. Mr. Calhoun's 



APPENDIX. 371 

objection seems to be this, that a power given by the consti- 
tution is restricted in all cases solely to the object of that 
power. If the object be not expressed, we must look for it 
in the natiu-e of the power. If avc mean by the nature of the 
power its fitness for a certain purpose, or for the attainment 
of a certain object, then the nature of the taxing power con- 
sists in that fitness — its fitness for raising a revenue. This 
is the principal and substantive object ; but is it necessarily 
confined to this object ? Suppose there is found in it also a 
fitness to become an auxiliary to some other principal powers, 
to afford the necessary and proper means for attaining the 
object of that power, does the former belong to its nature, 
the latter not ? These observations apply forcibly to the two 
powers of which we have been speaking. The power to 
regulate commerce it is conceded contains a grant, although 
not expressed of all the incidental powders necessary and 
proper to carry the principal poAvers into effect — a com- 
mand of the means necessary and proper to the attainment 
of its object. These means have been found in the power 
of taxation granted as a principal power for the purpose of 
revenue. The government have constantly used these means 
in regulating commerce, by imposing duties for the purpose 
of retaliating or countcrruling restrictions, on our trade by 
foreign nations. I will mention but one instance — the duty 
on foreign tonnage. But let us examine the subject a little 
more closely, and in detail. As before suggested, in order 
to ascertain correctly the extent of the powers granted, we 
must ascertain how the terms and expressions used in the 
grant, were understood by the framers of the constitution. 
For in that sense and no other, ought they now to be under- 



372 APPExNDIX. 

Stood. At the time of forming and adopting the constitu- 
tion, the regulation of commerce by duties and imposts, or 
in other words, by means of a tariff, had become famiUar to 
the people of this country. It had been in iise for ages in 
the English nation, from whom we are descended, and from 
whom we have derived our language, our legal, civil, politi- 
cal and commercial vocabulary. With them the numerous 
duties laid for the protection of trade, the encouragement of 
manufacture, and of every branch of domestic industry, have 
been in the language of parUament, of all their statesmen and 
writers on political economy, ever denominated regulations 
of commerce. The disputes between the colonies and the 
mother country, who claimed the right of regulating their 
commerce, and of imposing taxes and duties, not only as the 
means of enforcing such regulations, but for the purpose of 
raismg a revenue, rendered the terms " regulation of com- 
merce" and to regulate commerce, familiar to the people of 
this country, and that in connection with the imposition of 
duties as the necessary means. And this connection had 
become settled and fixed in the general mind by the frequent 
and repeated agitation of the subject in the public papers of 
the times, and in all public bodies throughout the colonies ; 
and the more so, as the colonists took a distinction between 
duties imposed upon them, for the purpose of regulating 
their commerce with the mother coimtry, including the pro- 
tection and encouragement of her manufactures, and those 
duties tliat were imposed merely for the purpose of revenue. 
The former they allowed to be constitutional, as the neces- 
sary concomitant of a constitutional poAver, the power to 
regulate commerce ; the latter they denied. In this con- 



APPENDIX. 373 

nection the term was understood and used by the framers of 
the constitution of the United States, as we are assured by 
Mr. JNIadison, who was a member, and one of the most 
efficient members of the general convention. And certainly 
his personal knowledge on the subject, his general informa- 
tion on whatever relates to our government, render him the 
most competent judge ; and his reputation for integrity the 
highest authority now living. By him we are informed, that 
the power to regulate commerce was then understood by all 
to unite with it a power to protect and encoiurage domestic 
manufactures, by a tariff of duties, and was one prominent 
view Avith which it was inserted in the constitution. We 
further find by unquestionable documents, that such was the 
view taken of it in the state conventions, as appears from 
their debates, as far as they have been made public. It was 
a powerful argument in favor of adopting the present consti- 
tution, by which was given up that power before vested in 
the several states, which, from a want of concert, had been 
found wholly ineffectual ; so that if they Avere deceived in 
this, if the power was not transferred to the general govern- 
ment, it no longer existed anywhere in the union — an in- 
stance not to be found in any other nation on earth. Such 
also was the understanding of the first congress under the 
present constitution, and which was composed of many who 
had been members of the general and the state conventions, 
that formed and adopted the constitution. Among the first 
which they passed was one in execution of this power, an 
act imposing duties, and reciting in the preamble that those 
duties were laid, among other things, for the purpose of pro- 
tecting manufactures. Nor does it appear, from the journals 
47 



374 APPENDIX. 

or debates published at the time, that there arose even the 
surmise of an objection to the prominent assertion of the 
power, so made, in its first exercise by congress. Not a ses- 
sion has since passed without some question being agitated 
upon the subject. Various objections have, from time to 
time, been lu-ged against the pohcy or expediency of par- 
ticular duties, or of the protection to be afforded to certain 
branches of manufactm*es — and in some instances to the 
general policy. But I cannot find that any objection was 
ever made to the right until 1820, more than thirty years 
from the commencement of its exercise, when, for the first 
time, on a tariff question then under discussion, the constitu- 
tional poAver and right of congress on this subject was de- 
nied, though but feebly supported. The strong opposition 
that has since continued, was not formed until 1824. It is 
worthy of remark, that the members in congress from the 
southern states, particularly from South Carolina, were, al- 
most to a man, zealous supporters of the tariff of 1816 — and 
none more prominent, or who brought to the subject more 
talents than the present writer, Mr. Calhoun. The act which 
was then passed, and principally through that influence, was 
the entering wedge of the present tariff system. But he now 
excuses himself by saying, that the constitutional question 
was not raised or discussed at that time. This is undoubt- 
edly true. But it is strange, passing strange, that, to a 
statesman of his comprehensive mind and acknowledged 
talents, the unconstitutionality of this power in exercise, 
Avhich now appears to him so prominent, should never have 
occurred before. 

To enlarge further on this point is unnecessary. It does 



APPENDIX. 375 

appear lo me that the reasons here exhibited have esta- 
bhshed, in its fullest extent, the constitutional power of con- 
gress on this subject, and, to use a language equally strong, 
■svith that gi the writer, if it be possible for reason to settle 
a question where the passions and interests of men are en- 
gaged, it has forever settled the point, and placed it beyond 
the reach of controversy. 



Extracts from the journals of the first session of the first con- 
gress, and selections from the debates on the first tariff act, 
passed on the fourth of July, 1789. 

DUTY ON STEEL. 

" Mr. Lee moved to strike out this duty ; observing that 
the consumption of steel was very great, and essentially 
necessary to agricultural improvements. He did not be- 
lieve any gentleman would contend, that enough of this 
article, to answer consumption, could be manufactured in any 
part of the union ; hence it would operate as an oppress- 
ive, though an indirect, tax upon agriculture ; and any tax, 
whether direct or indirect, upon this interest, at this junc- 
ture, would be unwise and impolitic." 

" Mr. Tucker joined the gentleman in his opinion, ob- 
serving, that it was impossible for some states to get it but 
by importation from foreign countries. He conceived it 
more deserving a bounty to increase the quantity, than an 
impost which would lessen the consumption and make it 
dearer also." 

" Mr. Clymer replied, that the manufacture of steel, in 
America, was rather in its infancy ; but as all the materials 
necessary to make it were the produce of almost every state 



376 APPENDIX. 

in the union, and as the manufacture ivas already established 
and attended loith considerable success, he deemed it prudent 
to emancipate our country from the manacles in which she 
was held by foreign manufacturers. A furnace in Phila- 
delphia, with a very small aid from the legislature of Penn- 
sylvania, made three hundred tons in two years, and noAV 
makes at the rate of two hundred and thirty tons annually, 
and with a little further encouragement, would supply enough 
for the consumption of the union. He hoped, therefore, 
gentlemen would be disposed, under these considerations, to 
extend a decree of patronage to a manufacture ivhich, a mo- 
ment's reflection would convince them was highly deserving 
protection." 

" Mr. Madison, thought the object of selecting this article 
to be solely the encouragement of the manufacturer, and not 
revenue ; for on any other consideration, it would be more 
proper, as observed by the gentleman from Carolina, (Mr. 
Tucker,) to give a bounty on the importation. It Avas so 
materially connected with the improvement of agriculture 
and other manufactures, that he questioned its propriety 
even on that score. A duty would tend to depress many 
mechanic arts in the proportion that it protected this ; he 
thought it best to reserve this article to the non-enumerated 
ones, where it would be subject to a five per cent ad valor 
rem." 

" Mr. Fitsimons. Some states were, from local circum- 
stances, better situated to carry on the manufacture than 
others, and would derive some little advantage on this ac- 
count in the commencement of the business. But laying 
aside local distinctions, what operates to the benefit of one 



APPENDIX. 377 

part, in establis^hing useful institutions, will eventually ope- 
rate to the advantage of the whole." 

" Suppose five shillings per hundred weight was imposed, 
it might be, as stated, a partial duty, but v'oukl not the evil 
be soon overbalanced by the establishment of such an important 
manufacture ? — a gi'eai and yrincipal manufacture for every 
agricultural country, but particularly useful in the United 
Slates." 

ON BEER, ALE AAD PORTER. 

" Mr. Fitzsimons meant to make an alteration in this arti- 
cle, by distinguishing beer, ale and porter, imported in casks, 
from what was imported in bottles. He thought this manu- 
facture was highly deserving of encouragement. If the 
morals of the people were to be improved by what entered 
into their diet, it would be prudent in the national legisla- 
ture to encourage the manufacture of malt liquors. The 
small protecting duties laid in Pennsylvania had a great 
effect towards the establishment of brmoeries ; they no longer 
imported this article, but, on the contrary, exported con- 
siderable quantities, and, in two or three years, with the fos- 
tering aid of government, Avould be able to furnish enough 
for the whole consumption of the United States. He moved 
nine cents per gallon." 

" Mr. Lawrence seconded the motion. He would have 
this duty so high as to give a decided preference to Ameri- 
can beer ; it Avould tend also to encourage agriculture, be- 
cause the malt and hops consumed in the manufacture were 
the produce of our own grounds." 

" Mr. Sinnickson declared himself a friend to this manu- 
facture, and thought if the duty was laid high enough to 



378 APPENDIX. 

effect a prohibition, the manufacture ivoukl increase, and of 
consequence the price be lessened. He considered it of im- 
portance, inasmuch as the materials were produced in the 
country, and tended to advance the agricultural interest." 

" Mr. Madison moved to lay an impost of eight cents on 
all beer imported. He did not think this sum would give a 
monopoly, but hoped it ivould be such an encouragement as to 
induce the manufacture to take deep root in evei'y state in 
the union; in this case, it would produce the collateral good 
hinted at by the gentleman from New Jersey, which, in 
his opinion, was an object well worthy of being attended 
to." 

ON CANDLES. 

" Mr. Fitzsimons moved to lay a duty of two cents on all 
candles of talloAv, per pound." 

" Mr. Tucker observed, that some states were under the 
necessity of importing considerable quantities of this article, 
while others had enough, and more than enough, for their 
own cqnsumption ; therefore the burden would be prac- 
tically borne by such states." 

" Mr. Fitzsimons. The manufacture of candles is an im- 
portant manufacture, and far advanced towards perfection. 
I have no doubt but, in a few years, we shall be able to fur- 
nish sufficient to supply the consumption for every part of 
the continent. In Pennsylvania we have a duty, of two 
pence per pound ; and under the operation of this small 
encouragement the manufacture has gained considerable 
strength. We no longer import candles from Ireland or 
England, of whom, a few years ago, we took considerable 
quantities ; the necessity of continuing those encouragements 



APPENDIX. 379 

which the stale legislatures have deemed proper, exists in a 
considerable degree ; therefore it will be politic in the gov- 
ernment of the United States to continue such duties till their 
object is accomplished." 

" Mr. Boudinot apprehended, that most states imported 
considerable quantities of this article from Russia and Ire- 
land ; he expected they would be made cheaper than they 
could be imported, if a small encouragement was held out 
by the government, as the materials were to be had in abun- 
dance in our country." 

" Mr. Lawrence thought that if candles were an object of 
considerable importation, they ought to be taxed for the sake 
of obtaining revenue ; and if they were not imported in 
considerable quantities, the burden upon the consumer would 
be small, while it tended to cherish a valuable manufac- 
ture." 

ON COAL. ■ 

" Mr. Bland, of Virginia, informed the committee that 
there were mines opened in Virginia, capable of supplying 
the whole of the United States ; and if some restraint was 
laid on the importation of foreign coal, these mmes might 
be worked to advantage. He thought it needless to insist 
upon the advantages resulting from a colliery, as a supjily 
for culinary and mechanical purposes, and as a nursery 
to train up seamen for a navy. He moved three cents a 
bushel." 

ON ireiNip. 

" Mr. Moore declared the southern states Avere well calcu- 
lated for the cultivation of hemp, and, from certain circum- 
stances, well inchned thereto. He conceived it the duty of 



380 APPENDIX. 

the committee to pay as much respect to the encouragement 
and protection of husbandry, (the most important of all in- 
terests in the United States,) as they did to manufactures." 
• " Mr. Scott stated a fact or two ; being, perhaps, as well 
acquainted with the western country as any member of the 
committee. The lands along the frontiers, he could assure 
the committee, were well calculated for the cultivation of 
this plant ; it is a production that will bear carriage by land 
better than any other, tobacco not excepted. He believed 
an encouragement of the kmd now moved for, would bring, 
in a year or tAvo, vast quantities from that country, at little 
expense, to Philadelphia, even from the waters of the Ohio ; 
the inhabitants expect^ some encouragement, and will be 
grateful for it." 

" Mr. White. — If the legislature take no notice of this 
article, the people will be led to believe it is not an object 
worthy of encouragement, and the spirit of cultivation will 
be damped ; whereas, if a small duty only was laid, it might 
point out to them that it Avas desirable, and would induce an 
increase of the quantity." 

" Mr. Moore. — By the encouragement given to manufac- 
tures, you raise them in price, while a competition is de- 
stroyed, which tended to the advantage of agriculture. He 
thought the manufacturing interest ought not to stand in the 
Avay of the other ; but, as the committee had agreed to give 
it encouragement, he hoped the other would receive its 
share of legislative support." 

" Mr. Burke thought it proper to suggest to the com- 
mittee, what might be the probable effect of the proposed 
measure, in the state he represented, (South Carolina,) and 



APPENDIX. 381 

the adjoining one, (Georgia.) The staple products of that 
part of the Union were hardly worth cultivation, on account 
of their fall in price ; the planters are therefore disposed to 
pursue some other. The lands are certainly Avell adapted to 
the growth of hemp, and he had no doubt but its culture 
would be practised with attention. Cotton is likewise in 
contemplation ainong them, and, if good seed could be pro- 
cured, he hoped it might succeed. But the low, strong rice 
lands would produce hemp in abundance ; many thousand 
tons, even this year, if it was not so late in the season. He 
liked the idea of laying a low duty now, and encouraging' it 
against the time when a supply might be had from our own 
cultivation." 

ON GLASS. 

" Mr. Carroll moved to insert window and other glass. 
A manufacture of this article was begun in Maryland, and 
attended with considerable success ; if the legislature were 
to grant a small encouragement, it would be permanently 
established. The materials Avere to be found in the country 
in sufficient quantities to answer the most extensive de- 
mands." 

^ON PAPER. 

" Mr. Clymer informed the house, that the manufacture of 
paper was an important one ; and, having groivn up luuier 
legislative encouragement, it ivill be loise to continue it." 

ON WOOL CARDS. 

" Mr. Ames introduced wool cards, with observing tliat 
they were manufactured to the eastward, as good and as 
cheap as the imported ones." 

" Mr. Clymer mentioned that, in the state of Pennsyl- 

48 



382 APPENDIX. 

vania, the manufacture was carried to great perfection, and 
enough could be furnished to supply the demand. A duty 
of fifty cents per dozen was imposed on wool cards." 

" Mr. Bland, of Virginia, thought that very little revenue 
was likely to be collected on the article of beef, let the duty 
be more or less ; and, as it was to be had in sufficient quan- 
tities within the United States, perhaps a tax, amounting- to a 
prohibition, loould be proper. ^^ It Avas rejected, as totally 
unnecessary, "nothing being to be apprehended from rival- 
ship." 

ON RIANUFACTURED TOBACCO. 

" Mr. Sherman moved six cents, as he thought the duty 
ought to amount to a prohibition. This was agreed to." 



No. VII. 



LETTER 

FROM GOV. CHITTENDEN TO GEN. WASHINGTON, 



UPON THE 



POLICY AND COURSE OF VERMONT 



IN TUE 



REVOLUTIONARY WAR. 



LETTER 



STATE OF VERMONT, 

Arlington, Nov. 14, 1781. 
Sir, — The peculiar situalion and circumstances Avitli 
which tliis state, for several years last past, has been at- 
tended, induces me to address your Excellency, on a subject 
which nearly concerns her interests, and may have its influ- 
ence on the common cause of the states of America. Plac- 
ing the highest confidence in your Excellency's patriotism 
in the cause of hberty, and disposition to do right and justice 
to every part of America, (who have by arms supported their 
rights against the lawless power of Great Britain,) I herein 
transmit the measures by which this stale has conducted her 
policy, for the security of its frontiers ; and, as the design 
and end of it was set on foot, and has ever since been pro- 
secuted on an honorable principle, (as the consequences will 
fully evince,) I do it wilh full confidence that your Excel- 
lency will not improve it to the disadvantage of this truly 
patriotic, suflcring state ; although the substance has already 
been communicated by Capt. Ezra Ilicock, employed by 
Major General Lincoln, by your Excellency's particular 



386 APPENDIX. 

direction, and who arrived here with the resolutions of con- 
gress of the seventh day of August last, which appeared in 
some measure favorable to this state. I then disclosed to 
him the measures this state had adopted for her security, 
which I make no doubt has by him been deHvered your 
Excellency. And though I do not hesitate that you are well 
satisfied of the real attachment of the government of this 
state to the common cause, I esteem it, nevertheless, my 
duty to this state, and the common cause at large, to lay 
before your Excellency, in writing, the heretofore critical 
situation of this state, and the management of its pohcy, 
that it may operate in your Excellency's mind, as a barrier 
against clamorous aspersions of its numerous (and, in many 
instances, potent) adversaries. /It is the misfortune of this 
state to join on the frontier of Quebec, and the waters of 
the Lake Champlain, which affords an easy passage for the 
enemy to make a descent with a formidable army on its 
frontiers, and into the neighborhood of the several states of 
New York, New Hampsliire, and Massachusetts, who have 
severally laid claims, m part or in whole, to this state, and 
who have used every art which they could devise to divide 
her citizens, to set congress against her, and, finally, to 
overturn the government, and share its territory among 
them. The repeated apphcations of this state to the con- 
gress of the United States, to be admitted into the federal 
union with them, upon the liberal principles of paying a just 
proportion of the expenses of the war with Great Britain, 
have been rejected, and resolutions passed, ex parte, tending 
to create schisms in the state, and thereby embarrass its 
^flfoyts in raising men and money for the defence of her 



APPENDIX. 387 

frontiers, and discountenancing the very existence of the 
state. Every article belonging to the United States, even 
to pickaxes and spades, has been by the commissioners or- 
dered out of this state, at a time when she was erecting a 
line of forts on her frontiers. At the same time the state of 
New York evacuated the post of Sfeensborongh, for the 
avowed purpose of exposing tliis state to the ravages of the 
common enemy. 

The British officers in New York, being acquainted with 
the public disputes between this and the claiming states, and 
between congress and this state, made overtures to Gen. 
Allen, in a letter, projecting that Vermont should be a 
colony under the croAvn of Great Britain, endeavoring, at 
the same time, to draAV the people of Vermont into their in- 
terest. The same day Gen. Allen received this letter, 
(which was in August, 1780,) he laid it before me and my 
council, who, under the critical circumstances of the state, 
advised that no answer, either oral or ^^Tritten, should be 
returned, and that the letter be safely deposited till further 
consideration: to Avhich Gen. Allen consented. A few 
months after, he received a second letter from the enemy, 
and the same council advised that Gen. Allen should send 
both letters to congress, (inclosed in a letter under his signa- 
ture,) which he did, in hopes that congress would admit 
Vermont into union ; but they had not the desired effect. 

In the fall of the year 1780, the British made a descent up 
the Lake Champlain, and captured the forts George and 
Ann, and appeared in force on the lake. This occasioned 
the militia of this state, most generally, to go forth to de- 
fend it. Thus the miUlia were encamped against the enemy 



388 



APPENDIX. 



near six weeks, when Gen. Allen received a flag from them, 
with an answer to my letter, dated the preceding July, to 
Gen. Haldemand, on the subject of an exchange of prisoners. 
This flag was delivered to Gen. Allen, from the command- 
ing officer of the enemy, who were then at Crown Point, 
with proposals for a truce with the state of Vermont, dur- 
ing the negotiating the exchange of prisoners. Gen. Allen 
sent back a flag of his to the commanding officer of the 
British, agreeing to the truce, provided he would extend 
the same to the frontier parts of the state of New York, 
which was complied Avith, and a truce took place, which 
lasted about three weeks. It was chiefly owing to the mili- 
tary prowess of the militia of this state, and the including 
the state of New York in the truce, that Albany and Sche- 
nectady had not fell a sacrffice to the ambition of the enemy 
that campaign. 

Previous to the retreating of the enemy into winter quar- 
ters. Col. Allen and Maj. Fay were commissioned to nego- 
tiate the proposed exchange of prisoners. They proceeded 
so far as to treat with the British commissioners on the sub- 
ject of their mission, during which time they were inter- 
changeably entertained with politics, which they treated in 
an affable manner, as I have been told, but no cartel was 
settled ; and the campaign ended without the eflusion of 
blood. 

The cabinet council, in the course of the succeeding 
winter, finding that the enemy in Canada were about 
seven thousand strong, and that Vermont must needs be 
their object the ensuing campaign, circular letters were 
therefore sent from the supreme executive authority of 



APPENDIX, 389 

this state to the claiming states before-mentioned, demand- 
ing of them to rcHnquish their claims to this state, and 
inviting them to join in a sohd union and confederation 
against the common enemy. Letters were also sent to 
your Excellency and to the states of Connecticut and Rhode 
Island ; any [one] of these letters stated the extreme cir- 
cumstances of this state, and implored their aid and alli- 
ance, giving them withal to understand, that it was out of 
the power of this state to lay in magazines and support a 
body of men sufficient to defend this state against the force 
of the enemy. But to those letters there has been no man- 
ner of ansAver retiurned. 

From all which it appeared that this state was devoted to 
destruction by the sword of the common enemy. It ap- 
peared to be the more unjustifiable that the state .of Ver- 
mont should be thus forsaken, inasmuch as her citizens 
struck the first offensive blow against British usurpation by 
putting the continent in possession of Ticondcroga, and 
more than two hundred pieces of cannon, with Crown 
Point, St. John's, and all Lake Champlain ; their exertions 
in defeating General Carleton in his attempts to raise the 
•siege of St. Johns ; their assisting in penetrating Canada ; 
their valor in the battle at Hubbenton, Bennington, and the 
landing near Ticonderoga ; assisting in the capture of Gen- 
eral Burgoyne, and by being the principal barrier agamst 
!he power of the enemy in Canada ever since. 

That the citizens of this state have, by nature, an equal 
right to liberty and independency with the citizens of Amer- 
ica in general cannot be disputed, and that they have merited 
it from the United States, by their exertions with them, in 

49 



390 APPENDIX. 

bringing about the present glorious revolution, is as evident 
a truth as any other which respects the acquired right of any 
community. Generosity, merit and gratitude, all conspire 
in vindicating the independence of Vermont ; but notwith- 
standing the arguments which have been exhibited in sundry 
pamphlets in favor of Vermont, which have been abundantly 
satisfactory to the impartial part of mankind, it has been in 
the power of her external enemies to deprive her of union, 
confederation, or any equal advantage in defending them- 
selves against the common enemy. The winter being thus 
spent in fruitless attempts to form alliances, and no advan- 
tages were procured in favor of this state, except that Mas- 
sachusetts withdrew her claim on condition that the United 
States would concede to the independence of Vermont ; but 
that if they would not, they would have their smack at the 
south end of its territory ; still New York and New Hamp- 
shire were strenuously opposed to the independence of Ver- 
mont, and every stratagem in then- power to divide and sub- 
divide her citizens Avere exerted, imagining that their influ- 
ence in congress, and the certain destruction (as they sup- 
posed) of the inhabitants of this state by the common enemy, 
could not fail of finally accomplishing their wishes. 

In thLs juncture of affairs, the cabinet of Vermont pro- 
jected the extension of their claim of jurisdiction upon the 
state of New Hampshire and New York, as well to quiet 
their oAvn internal divisions occasioned by the machinations 
of those two governments, as to make them experience the 
evils of intestine broils, and strengthen this state against 
insult. The legislature accordingly extended their jurisdic- 
tion to the eastward of Connecticut River to the old Mason 



APPENDIX. 391 

line, and to the westward to Hudson River. But in the 
articles of union referred the determination of the boundary 
lines of Vermont and the respective claiming states, to the 
final decision of congress, or such other tribunal as might 
be mutually agreed on by the contending governments. 
These were the principal political movements of the last 
winter. The last campaign opening with a gloomy aspect 
to the discerning citizens of this state, being destitute of ade- 
quate resources, and without any alhance, and that from its 
local situation to Canada, obliged to encounter the whole 
force of that province, or give up its claim to independence 
and run away. 

Vermont being thus drove to desperation by the injus- 
tice of those who should have been her friends, was obliged 
to adopt policy in the room of power ; and, on the first day 
of May last, Colonel L-a Allen was sent to Canada, to fur- 
ther negotiate the business of the exchange of prisoners, 
who agreed on a time and place, and other particulars re- 
lating to the exchange. While he was transacting that busi- 
ness, he was treated with great politeness, and entertained 
with political matters, which necessity obhged him to humor 
in that easy manner that might serve the interests of this state 
in its extreme critical situation, and that its consequences 
might not be injurious to the United States. The plan suc- 
ceeded. The frontiers of this state were not invaded, and 
Lord George Germain's letter ^vrought \ipon congress and 
procured that from them which the public virtue of this 
people could not. 

In the month of July last, Major Joseph Fay was sent to 
the British shipping on Lake Champlain, who completed 



392 APPENDIX. 

an exchange of a number of prisoners who were delivered 
at Sheensborough in September last, at which time and place 
Colonel Ira Allen and Major Fay had a conference with the 
British commissioners, and no damage as yet had occurred 
to this or the United States from this quarter. And in the^ 
month of October last, the enemy appeared in force at 
Crown Point and Ticonderoga, but were manoeu\T:ed out of 
their expedition, and were returned into winter quarters in 
Canada with great safety ; that it might be fulfilled which 
was spoken by the prophet : — "I will put my hook in their 
nose, and turn them back by the way which they came, and 
they shall not come into this city " (ahas Vermont) " saith 
the Lord." 

It remains that I congratulate your Excellency, and par- 
ticipate with you in the joy of your capturing the haughty 
Cornwallis and his army, and assure your Excellency that 
there are no gentlemen in America who enjoy the glorious 
victory more than the gentlemen of this state, and him who 
has the honor to subscribe himself your Excellency's devoted 
and most obedient, humble servant, 

Thomas Cuittenden. 
His Excellency General Washington. 



No. VIII. 



LETTER 



FROM 



NATHANIEL CHIPIMAN TO ALEXANDER ILVMTLTON, 



OCCASIONED BY 



CERTAIN PROCEEDINGS OF THE DEMOCRATIC SOCIETY 



OF THE 



COUNTY OF CHITTENDEN. 



The proceedings of the Democratic Society of the county of Chitten- 
den, which occasioned the following letter, form a document of consid- 
erable length, which is not here republished, as its contents would be of 
little interest to readers of the present generation. They are a strong 
expression of the democratic doctrines of the time. As some of the posi- 
tions laid down in it were enforced by quotations from the writings of Judge 
Chipman, he felt it his duty to address the following explanatory letter to 
Mr. Hamilton. 



LETTER. 



Rutland, Vt. January 9, 1794. 
Dear Sir, — You have, undoubtedly, noticed the proceed- 
ings of the Democratic Society in the county of Chittenden, 
in this state. I find they have been pubHshed with great 
avidity in New York and Philadelphia. The founder of that 
society, and sole author of their late proceedmgs, perhaps 
you are apprized, is not an inhabitant of this state, but re- 
sides, generally in the city of New York. What could have 
induced that gentleman to call in the aid of my name or my 
writings, in support of such proceedings, is best known to 
himself. If you have not read the work from which the 
quotations are made, you might be led, from the detached 
sentences there cited, to beheve that it contains the princi- 
ples of anarchy instead of the principles of government — 
principles wholly subversive of a representative democracy. 
If you give yourself the trouble of reading the passages 
there ched, in their connection, you will find that they have 
been brought in by the head and shoulders, and with the 
strength of a Hercules, as a comic writer observes on a hke 
occasion. I have, indeed, in trealhig of a representative 



396 APPENDIX. 

democracy, asserted that " an interest in the approbation of 
the people, and a strong sense of accountability to them, in 
all official conduct is the greatest, or rather the only effect- 
ual security against abuses in those who exercise the powers 
of government." 

I have further said, that " to render the pubhc sentiment a 
more rational and more powerful check upon every depart- 
ment, it is essentially necessary that there be in the consti- 
tution of every free state an effectual provision for the dis- 
semination of useful knowledge." That " in a republic, by 
which is intended a representative democracy, the powers of 
government are supported, not by force, but by the senti- 
ments of the people ; " that "it is necessary to cultivate a 
sentiment of attachment to the government." 

I still believe these sentiments to be just, not in theory 
only but in practice. Yet I cannot discover that they ex- 
press, or even remotely imply an approbation of self-created 
societies and clubs, formed for the purpose of censuring the 
proceedings of governments i7i transitu, of anticipating the 
deliberations of constitutional bodies, or dictating the meas- 
ures which those bodies ought to pursue. 

If, sir, you will have the patience to read so long a letter, 
I will give you my reasons for believing such societies to be 
not only useless, but dangerous. Simple democracies, in 
which the people assemble in a body to enact laws, and de- 
cide upon public measures, have, from the earliest ages, ex- 
hibited scenes of turbulence, violence and fluctuation, be- 
yond any other kind of government. No government has 
been able to exist under this form for any length of time. 
Experience has evinced that the people, collected in a body 



APPENDIX. 397 

are impatient of discussion, and incapable of reasoning, but 
they are highly susceptible of passions. To these the more 
artful direct their whole attention ; by these every decision in 
the numerous and heterogeneous assemblies of the people at 
large is irresistibly influenced. In a simple democracy there 
can be no fixed constitution, everything is liable to be 
changed by the frenzy of the moment, or the influence 
of a popular faction. In such a government, when all are 
immediate actors, no accountability can exist ; consequently 
in no government have there been instances of a more fla- 
grant violation of rights, or a tyranny more cruel and reme- 
diless than those Avhich have been frequently exercised over 
a minority of the citizens or against an unpopular indi- 
vidual. 

'■■■^Such is not the government under which we live. Our 
national government and the governments of the several 
states are representative democracies. This kind of govern- 
ment is calculated to give a permanent security to all the 
essential rights of man, life, liberty and property, the equal 
right of acquisition and enjoyment in a just compromise with 
the rights of all which a simple democracy does not. It is 
designed in its constitution to provide equally against the 
tyranny of the few and the tyranny of the many. 

The people have endeavored to place their delegated 
rulers in a constant state of accountability. This is the 
hinge on which American liberty turns. That the most 
perfect freedom of dehberation might be secured, the mem- 
bers of the legislature are, in their public conduct, made 
accountable only to the sentiments of the people by the 
interest which they have in the approbation of their con- 
50 



398 APPENDIX. 



stituents. The executive is made accountable to the pubhc 
sentiment, and is further amenable to a constitutional tribu- 
nal for every violation of trust. 

The powders and duties of the several departments are, in 
many instances, limited by the laws of the constitution, 
by which the people have said, thus far shall ye go and 
no farther. IVIany things are left to their integrity and dis- 
cretion to act for the best good of the nation. 

Congress are, from theu' situation, furnished with the ne- 
cessary information relative to the present state of things as 
they may affect the nation, whether internally or externally. 
AU this is in their debates, handed out and circulated among 
the people, together with all the reasons for and against any 
measm*e that could be suggested by the most mature delibe- 
ration. By these means the people have in their power suffi- 
cient information to judge calmly and rationally of the 
measures which have from time to time been adopted. Pro- 
ceeding in this way, I am persuaded that a representative 
democracy may secure the most civil and political happiness 
of any of the kinds of government which have yet existed. 
Such is the state of things, that knowledge in the compli- 
cated affairs of civil society comes not by intuition. The 
means of information, and frequently diligent investigations, 
are necessary. The knowledge of the people will follow, 
but can rarely precede a pubhc discussion. They will gene- 
rally approve or disapprove with j udgment, but, in debating, 
are exposed to all the rashness of ignorance, passion and 
prejudice. 

Our self-created societies and clubs, as it appears to me, 
have a tendency, directly or indirectly, to introduce into the 



APPENDIX. 399 

measures of government all the precipitation, all the heat 
and ungovernable passions of a simple democracy. 

Have we reason to believe that these self-pronounced dic- 
tators have a freer access to the means of information, that 
they have been able, more fuUy, to comprehend the present 
circumstances, the principles, and reasons Avhich ought to 
direct public measures, than those to whom the people have 
confided that task, or even than their more peaceable and 
quiet feUow-citizens ? Certainly they have given us no un- 
equivocal proof of either. Their professed design has been 
to promote political knowledge, but whenever they have 
established themselves, they have assumed a dictatorial style 
in their resolves. When any man or body of men have 
refused their dictates, or presumed to differ from their 
opinion, no length of meritorious services, no virtue or in- 
tegrity of character, have been proof against their bold pro- 
scriptions. Like the demagogues of simple democracy, 
they have appealed wholly to the passions and jealousies of 
the people. They have assumed to speak the sentiments of 
the people, though, in point of numbers, they arc certainly 
a very inconsiderable minority. If their assertions have so 
far imposed on the national government, as to direct their 
measures, it is worse than the evils of a simple democracy. 
It is an engine to govern the majority by a minor faction. 
Nothing of this kind can happen in an assembly of the 
people at large. Is it, sir, supposed that the measures of 
congress have, in their present session, been influenced by 
means of these societies ? I should be very unwilling to 
believe that the American government, which I had sup- 
posed to be an improvement upon the wisdom of ages, had 



400 APPENDIX. 

SO soon submitted to the control of a few self-authorized 
ohgarchs. 

If, however, these societies are unable to dictate meas- 
ures to the national government, they will still have a very 
pernicious effect. When once, though under the thickest 
clouds of ignorance, they have prejudged a measure, and 
assumed to dictate it, unless they have more candor than 
most men, their prejudices will rarely come to any light of 
conviction. This, as far as their influence extends, will, 
in a great degree, prevent the happy effect of the wisest and 
best measures. It is, perhaps, of as much importance, in 
general, that the people should see and acknowledge the 
measures ef government to be wise and good, as that they 
should be really wise and good. If there is a failure in 
either respect, they will not secure the happiness of the 
people. 

It is of great consequence that the people, with the means 
of information, should cultivate a disposition to judge with 
coolness and impartiality, and that legislators should en- 
deavor to render the reason of their measures plain and 
intelligible to the common sense of mankind. 

I know it is frequently said that, in a republic, it is neces- 
sary to the maintenance of liberty, that the people should be 
jealous of their rulers. But I have never been able to per- 
suade myself, that, to be a good repubhcan, a man must 
imbibe prejudices which is the necessary consequence of 
jealousy. That, certainly, is an unfortunate situation, which 
renders candor dangerous, or jealousy a species of virtue. 
In no government are rulers held more strictly and generally 
accountable, than in one representative democracy. Their 



APPENDIX. 401 

continuance in place depends constantly on a faithful dis- 
charge of their trust. 

Ought we not, then, for a suspicious jealousy to substitute 
a manly and rational confidence ? This, by no means, im- 
plies a supine inattention to public men or measures, but it 
admits candor in the examination. If jealousy be a repub- 
lican virtue, if it be necessary to excite suspicions among the 
people, to render them watchful of their liberties, it must be 
acknowledged that the democratic societies have, in this 
respect, great merit. They will not, surely, think that the 
people ought to exempt them from suspicions and jealousies 
because they are self-existent. Until their time shall come, 
they may, on these principles, justify any of the most violent 
and ill-grounded invectives against the members of the 
federal government, as purely intended to keep alive among 
the people a necessary jealousy, a wholesome distrust of 
rulers. If, by these means, the people should be deprived 
of all the present blessings of government, and the nation 
plunged into a long series of calamities, they have only to 
say, all this is the glorious price of liberty. They need not 
blush for their virulent censures of the executive of the 
federal government, for an opposition to the measures of a 
foreign minister — those measures which were disapproved 
by his nation, and for which he was recalled with pointed 
marks of disgrace. Notwithstanding what has been ob- 
served, I do not mean to insinuate that such associations as 
our democratic societies are to be animadverted upon by 
laws, or restrained by the constitution : the exercise of such 
a power would be more dangerous to liberty than the asso- 
ciations themselves. They must be left to rise or fall solely 



402 APPENDIX. 

by the good sense of the people. Nor would I insinuate 
that it can never be expedient for the people to assemble to 
petition for a redress of grievances, whether constitutional 
or legislative. But it would be well if the petitions and rep- 
resentations of the people, unless when they come from 
known corporate bodies, were always to be signed individ- 
ually, that it might be known how far they are expressive of 
the public sentiment. When they come forward from vol- 
untary societies, there is often a deception. It is not known 
whether they embrace ten or ten thousand individuals. 

From these observations you will be convinced that I am \ 
no friend to such societies, and that my name ought not to / 
have been brought forward, as one who favored their prin- 
ciples. 

I am. Sir, yours, &c. 

N. CfflPMAN. 

Alexander Hamilton, Esq. 



THE END. 



lbD78 



